Roxanne Delgado v. State of New York
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Opinion
State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 83 Roxanne Delgado, et al., Appellants, v. State of New York et al., Respondents.
Cameron J. Macdonald, for appellants. Victor Paladino, for respondents. Carl E. Heastie, amicus curiae.
CANNATARO, Acting Chief Judge:
In this declaratory judgment action, plaintiffs challenge the constitutionality of part
HHH of chapter 59 of the Laws of 2018 (the enabling act), in which the Legislature tasked
the Committee on Legislative and Executive Compensation with determining, after -1- -2- No. 83
consideration of various factors, whether “the salary and allowances of the members of the
[L]egislature” and certain other state officials “warrant an increase” (L 2018, ch 59, part
HHH, § 2 [2]). The enabling act further provided that the Committee’s recommendation
with respect to any salary changes would become effective unless modified or abrogated
by statute. Inasmuch as defendants have failed to overcome the presumption of
constitutionality afforded to the enabling act as a duly enacted state statute (see Matter of
County of Chemung v Shah, 28 NY3d 244, 262 [2016]), we affirm.
I.
The constitutionality of the enabling act cannot be assessed without an overview of
the framework governing adjustments to the compensation of state officers. Historically,
legislative salaries were “fixed, primarily on a per diem basis, by the [New York]
Constitution, and could be changed only by constitutional amendment” (Dunlea v
Anderson, 66 NY2d 265, 268 [1985]).1 In 1948, however, the Legislature amended article
III, section 6 to provide that legislators shall receive for “services a like annual salary, to
be fixed by law,” with the proviso that compensation could neither be increased nor
diminished during, and with respect to, the term for which the legislator was elected.
Thereafter, the compensation for members of the Legislature and allowances for members
serving as officers or in a special capacity were set forth in Legislative Law §§ 5 and 5-a.
1 Legislative compensation was initially “to be ascertained by law,” subject to a maximum of $3 per day (see 1821 NY Const, art I, § 9). Beginning in 1846, compensation was fixed in the Constitution at “a sum not exceeding three dollars per day” and not to exceed an aggregate of $300 (1846 NY Const, art III, § 6; see 2 Charles Z. Lincoln, The Constitutional History of New York at 132-133 [1906]). -2- -3- No. 83
Similarly, the salaries of the Comptroller of the State of New York and Attorney General
were set forth in Executive Law §§ 40 and 60, respectively. Salaries for certain other state
officers in the executive branch, such as agency commissioners, were contained in
Executive Law § 169. On their face, those statutes resemble Judiciary Law article 7-B (see
Judiciary Law §§ 221—221-i), which implements the “Compensation Clause” for judges
contained in article VI, § 25 (a) of the New York Constitution.
The Compensation Clause provides that the “compensation” of judges covered by
article VI of the State Constitution “shall be established by law and shall not be diminished
during the term of office for which” the judge was elected or appointed (NY Const, art VI,
§ 25 [a] [emphasis added]).2 In accordance with this mandate, salary schedules were
2 Unlike articles III, § 6 and XIII, § 7 of the New York Constitution, which provide that legislative compensation may not “be increased or diminished during, and with respect to, the term for which [the state officer] shall have been elected or appointed,” article VI, § 25 (a) prohibits only diminishment, not increase, of judicial compensation. In addition, article III, § 6 and article XIII, § 7 of the Constitution require that the salaries of certain state officers be “fixed by law,” while article VI, § 25 (a) requires that judicial salaries be “established by law” (emphasis added). We note that, with the exception of a brief period in the early 20th century, during which the Constitution included a salary schedule for members of the judiciary, the State Constitution has provided since 1846 that “compensation” of judges is to be “established by law” (1846 NY Const, art VI, § 7; see Maron, 14 NY3d at 251; see also Gresser v O’Brien, 146 Misc 909, 916-919 [Sup Ct, NY County 1933], affd 263 NY 622 [1934]). Although the dissenters rely on cases involving judicial salaries in part V of the dissent—which unconvincingly attempts to parse the meaning of the phrase “by law” in the state Constitution (dissenting op at 22-30)—the dissent self-contradictorily expresses confusion as to why we have chosen to look to cases involving judicial salaries, questioning whether “those other cases” are “close enough” (dissenting op at 2). The explanation for our reliance on this Court’s precedent addressing judicial salaries is simple: Whatever the difference in meaning between “fixed” and “established,” the critical phrase common to the relevant constitutional provisions for purposes of this appeal is “by law.” -3- -4- No. 83
typically set forth in statutes enacted by the Legislature (see 4 Charles Z. Lincoln, The
Constitutional History of New York at 590-591 [1906]).
The Legislature altered that practice in 2010 after this Court addressed the
Compensation Clause and related separation of powers issues following “the failure of the
Legislature and the Executive to come to an agreement on legislation effecting a [judicial]
pay raise” from the levels set by the 1998 amendment of the Judiciary Law (Maron, 14
NY3d at 246). We explained that judicial salary increases had been proposed by Governors
on several occasions between 2006 and 2009, but statutes reflecting those increases were
not enacted because the relevant bills “did not [also] provide for an increase in legislative
pay” or because the Legislature refused to also “enact[] campaign finance and ethics reform
measures” demanded by the Governor (id. at 245). Maron reaffirmed that “although the
diminution in value of judicial compensation by inflation was a concern, the drafters [of
the Compensation Clause] decided that the best way to combat the effects of inflation was
to count on the Legislature—the body directly accountable to the public—to assure the fair
and appropriate compensation of the Judiciary” (id. at 254). Thus, we recognized that
“whether judicial compensation should be adjusted, and by how much, is within the
province of the Legislature” (id. at 263). Nevertheless, we concluded “that the State had
unconstitutionally compromised the independence of the judiciary over the course of three
years by linking any decision on whether to increase judges’ salaries with other legislative
initiatives such as the enactment of legislative pay increases and campaign finance reform”
(Larabee v Governor of the State of N.Y., 27 NY3d 469, 473 [2016], citing Maron, 14
NY3d at 245-246, 260-261).
-4- -5- No. 83
Notably, in describing “the continuing inertia underlying [the judicial salary]
dispute” (id. at 246), the Maron Court observed that the Senate passed bills in 2007 “calling
for the creation of a commission to review future salary increases for both judges and
legislators” and “a commission to examine future increases in judicial salaries taking into
account the needs of the Judiciary and the State’s ability to pay” (id. at 245; see 2007 NY
Senate Bills S5313, S6550). Like the enabling act here, those bills directed the proposed
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State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 83 Roxanne Delgado, et al., Appellants, v. State of New York et al., Respondents.
Cameron J. Macdonald, for appellants. Victor Paladino, for respondents. Carl E. Heastie, amicus curiae.
CANNATARO, Acting Chief Judge:
In this declaratory judgment action, plaintiffs challenge the constitutionality of part
HHH of chapter 59 of the Laws of 2018 (the enabling act), in which the Legislature tasked
the Committee on Legislative and Executive Compensation with determining, after -1- -2- No. 83
consideration of various factors, whether “the salary and allowances of the members of the
[L]egislature” and certain other state officials “warrant an increase” (L 2018, ch 59, part
HHH, § 2 [2]). The enabling act further provided that the Committee’s recommendation
with respect to any salary changes would become effective unless modified or abrogated
by statute. Inasmuch as defendants have failed to overcome the presumption of
constitutionality afforded to the enabling act as a duly enacted state statute (see Matter of
County of Chemung v Shah, 28 NY3d 244, 262 [2016]), we affirm.
I.
The constitutionality of the enabling act cannot be assessed without an overview of
the framework governing adjustments to the compensation of state officers. Historically,
legislative salaries were “fixed, primarily on a per diem basis, by the [New York]
Constitution, and could be changed only by constitutional amendment” (Dunlea v
Anderson, 66 NY2d 265, 268 [1985]).1 In 1948, however, the Legislature amended article
III, section 6 to provide that legislators shall receive for “services a like annual salary, to
be fixed by law,” with the proviso that compensation could neither be increased nor
diminished during, and with respect to, the term for which the legislator was elected.
Thereafter, the compensation for members of the Legislature and allowances for members
serving as officers or in a special capacity were set forth in Legislative Law §§ 5 and 5-a.
1 Legislative compensation was initially “to be ascertained by law,” subject to a maximum of $3 per day (see 1821 NY Const, art I, § 9). Beginning in 1846, compensation was fixed in the Constitution at “a sum not exceeding three dollars per day” and not to exceed an aggregate of $300 (1846 NY Const, art III, § 6; see 2 Charles Z. Lincoln, The Constitutional History of New York at 132-133 [1906]). -2- -3- No. 83
Similarly, the salaries of the Comptroller of the State of New York and Attorney General
were set forth in Executive Law §§ 40 and 60, respectively. Salaries for certain other state
officers in the executive branch, such as agency commissioners, were contained in
Executive Law § 169. On their face, those statutes resemble Judiciary Law article 7-B (see
Judiciary Law §§ 221—221-i), which implements the “Compensation Clause” for judges
contained in article VI, § 25 (a) of the New York Constitution.
The Compensation Clause provides that the “compensation” of judges covered by
article VI of the State Constitution “shall be established by law and shall not be diminished
during the term of office for which” the judge was elected or appointed (NY Const, art VI,
§ 25 [a] [emphasis added]).2 In accordance with this mandate, salary schedules were
2 Unlike articles III, § 6 and XIII, § 7 of the New York Constitution, which provide that legislative compensation may not “be increased or diminished during, and with respect to, the term for which [the state officer] shall have been elected or appointed,” article VI, § 25 (a) prohibits only diminishment, not increase, of judicial compensation. In addition, article III, § 6 and article XIII, § 7 of the Constitution require that the salaries of certain state officers be “fixed by law,” while article VI, § 25 (a) requires that judicial salaries be “established by law” (emphasis added). We note that, with the exception of a brief period in the early 20th century, during which the Constitution included a salary schedule for members of the judiciary, the State Constitution has provided since 1846 that “compensation” of judges is to be “established by law” (1846 NY Const, art VI, § 7; see Maron, 14 NY3d at 251; see also Gresser v O’Brien, 146 Misc 909, 916-919 [Sup Ct, NY County 1933], affd 263 NY 622 [1934]). Although the dissenters rely on cases involving judicial salaries in part V of the dissent—which unconvincingly attempts to parse the meaning of the phrase “by law” in the state Constitution (dissenting op at 22-30)—the dissent self-contradictorily expresses confusion as to why we have chosen to look to cases involving judicial salaries, questioning whether “those other cases” are “close enough” (dissenting op at 2). The explanation for our reliance on this Court’s precedent addressing judicial salaries is simple: Whatever the difference in meaning between “fixed” and “established,” the critical phrase common to the relevant constitutional provisions for purposes of this appeal is “by law.” -3- -4- No. 83
typically set forth in statutes enacted by the Legislature (see 4 Charles Z. Lincoln, The
Constitutional History of New York at 590-591 [1906]).
The Legislature altered that practice in 2010 after this Court addressed the
Compensation Clause and related separation of powers issues following “the failure of the
Legislature and the Executive to come to an agreement on legislation effecting a [judicial]
pay raise” from the levels set by the 1998 amendment of the Judiciary Law (Maron, 14
NY3d at 246). We explained that judicial salary increases had been proposed by Governors
on several occasions between 2006 and 2009, but statutes reflecting those increases were
not enacted because the relevant bills “did not [also] provide for an increase in legislative
pay” or because the Legislature refused to also “enact[] campaign finance and ethics reform
measures” demanded by the Governor (id. at 245). Maron reaffirmed that “although the
diminution in value of judicial compensation by inflation was a concern, the drafters [of
the Compensation Clause] decided that the best way to combat the effects of inflation was
to count on the Legislature—the body directly accountable to the public—to assure the fair
and appropriate compensation of the Judiciary” (id. at 254). Thus, we recognized that
“whether judicial compensation should be adjusted, and by how much, is within the
province of the Legislature” (id. at 263). Nevertheless, we concluded “that the State had
unconstitutionally compromised the independence of the judiciary over the course of three
years by linking any decision on whether to increase judges’ salaries with other legislative
initiatives such as the enactment of legislative pay increases and campaign finance reform”
(Larabee v Governor of the State of N.Y., 27 NY3d 469, 473 [2016], citing Maron, 14
NY3d at 245-246, 260-261).
-4- -5- No. 83
Notably, in describing “the continuing inertia underlying [the judicial salary]
dispute” (id. at 246), the Maron Court observed that the Senate passed bills in 2007 “calling
for the creation of a commission to review future salary increases for both judges and
legislators” and “a commission to examine future increases in judicial salaries taking into
account the needs of the Judiciary and the State’s ability to pay” (id. at 245; see 2007 NY
Senate Bills S5313, S6550). Like the enabling act here, those bills directed the proposed
commissions to make recommendations, based upon various non-exclusive factors set
forth in the bills, in a report to the Governor, the Legislature and the Chief Judge by a
certain date; those recommendations would “have the force of law” and “supersede
inconsistent provisions of” the Judiciary Law, Executive Law and Legislative Law unless
“modified or abrogated by statute” (2007 NY Senate Bill S5313, §§ 3 [i], 4 [h]; 2007 NY
Senate Bill 6550, § 3 [h]).
Shortly after our decision in Maron, the Legislature passed a law creating the
Commission on Judicial Compensation (see L 2010, ch 567). The 2010 statute, intended
to comply with Maron (see Senate Introducer’s Mem in Support, Bill Jacket, L 2010, ch
567, at 8) and enacted with the support of the Office of Court Administration (see Letter
from Off of Ct Admin, Dec 23, 2010, Bill Jacket, L 2010, ch 567, at 9), closely resembles
the enabling act at issue here. The 2010 statute required the Commission to “make
recommendations with respect to adequate levels of compensation and non-salary benefits
for judges” after assessing a list of non-exclusive factors (L 2010, ch 567, § 1 [a]);
following the Commission’s submission of those recommendations to the Governor,
Legislature and Chief Judge, the recommendations would “have the force of law, and . . .
-5- -6- No. 83
supersede inconsistent provisions of article 7-B of the judiciary law, unless modified or
abrogated by statute prior to April first of the year as to which such determination applies”
(id. § 1 [h]).
In Larabee, we explained the effect of the supersession clause contained in the 2010
statute: “Under th[e] new law, when the Commission recommends an increase in judicial
salaries, the increase goes into effect by operation of law on April 1 of the year for which
it is recommended, unless the Legislature passes a statute rejecting the recommended pay
raise” (Larabee, 27 NY3d at 472).3 The Court opined that the enactment of the 2010 statute
remedied “the constitutional violation that led to our decision in Matter of Maron,” and
3 The dissent takes issue with our citation to the facts in Larabee (dissenting op at 13-14). We look to Larabee in describing the historical background leading to the dispute at issue in this case. Specifically, in Larabee, we acknowledged that it was “[i]n response to our decision in Matter of Maron, [that] the [L]egislature passed, and the Governor signed, legislation establishing an independent Commission on Judicial Compensation, which was empowered to recommend prospective judicial compensation increases at four-year intervals after the effective date of the legislation” (Larabee, 27 NY3d 472). The dissenters are correct that the parties in the recent judicial pay cases did not meaningfully address the existence of the supersession clause that we explicitly highlighted in explaining that the 2010 legislation created a “process” through which “the issue of judicial compensation now receives consideration independent of other political matters” (Larabee, 27 NY3d at 472). Perhaps that is because, as plaintiffs have acknowledged since the outset of this action, “the Legislature may delegate judicial compensation decisions.” In making that concession before Supreme Court, plaintiffs cited this Court’s decision in Matter of Benvenga v LaGuardia (294 NY 526, 533 [1945]), and correctly acknowledged “that was the understanding for almost [100] years” prior to the amendment of article III, section 6 to provide that legislative compensation shall “be fixed by law.” In any event, the facts of Larabee and our statements therein, like those of the other judicial pay cases, have relevance to the developments that have led to this case. -6- -7- No. 83
“through this legislatively-created process, the issue of judicial compensation now receives
consideration independent of other political matters” (id.).4
II.
In 2015, as part of its annual budget bill, the Legislature created another similar
commission—the Commission on Legislative, Judicial and Executive Compensation—
which was charged with meeting quadrennially to make recommendations regarding
adequate levels of compensation for members of the Legislature, judges, statewide elected
officials and certain state officers (see L 2015, ch 60, Part E, § 2). The 2015 statute was,
once again, similar to the enabling act challenged in this action. Under the terms of the
2015 legislation, the Commission was required to submit to the Legislature its
recommendations by a specified date; the recommendations would “have the force of law,
and . . . supersede, where appropriate, inconsistent provisions of article 7-B of the judiciary
law, section 169 of the executive law, and sections 5 and 5-a of the legislative law, unless
modified or abrogated by statute” by a date certain (L 2015, ch 60, § 1, Part E, § 3 [7]).
The Commission made recommendations only as to judicial salaries, which first took effect
in April 2016.
A declaratory judgment action was commenced challenging the 2015 statute as an
unconstitutional delegation of legislative authority without reasonable standards or
safeguards. Supreme Court granted the defendants’ motion for summary judgment, and
4 The Commission authorized by the 2010 statute recommended a 27% increase in judicial salaries that was phased in over the course of three years commencing in 2012 (see Larabee, 121 AD3d 162, 169 [1st Dept 2014] [Sweeny, J., concurring]). -7- -8- No. 83
the Appellate Division affirmed (Center for Jud. Accountability, Inc. v Cuomo, 167 AD3d
1406, 1411 [3d Dept 2018], appeal dismissed 33 NY3d 993 [2019], reconsid denied 34
NY3d 960 [2019]; lv denied 34 NY3d 961 [2019], rearg denied 34 NY3d 1147 [2019]).
The Appellate Division reasoned that “[t]he factors established by the Legislature” in the
2015 statute “provide[d] adequate standards and guidance for the exercise of discretion by
the Commission” and “the enabling statute contains the [additional] safeguard of requiring
that the Commission report its recommendations directly to the Legislature so that it . . .
[can] exercise its prerogative to reject any Commission recommendations before they
become effective” (id.). In 2019, we dismissed the appeal from the Appellate Division’s
order on the ground that no substantial constitutional question was directly involved (33
NY3d 993 [2019]), and thereafter denied leave to appeal (34 NY3d 961 [2019]).
The Legislature created a similar body as part of its 2018 budget bill—the
Committee on Legislative and Executive Compensation at issue here—which was tasked
with examining the “prevailing adequacy of pay levels” for members of the Legislature,
statewide elected officials, and state officers whose salaries are set forth in Executive Law
§ 169, and determining whether their annual salaries “warrant an increase” (L 2018, ch 59,
part HHH, § 2 [2]). Like the prior statutes and proposed Senate bills, the enabling act set
forth a similar non-exclusive list of factors for the Committee to consider in determining
adequacy of salaries (id. § 2 [3]). The Committee was required to report its findings,
conclusions, determinations and recommendations to the Legislature and the Governor by
December 10, 2018 (id. § 4 [1]). Those recommendations would “have the force of law . .
. unless modified or abrogated by statute” before January 1, 2019 (id. § 4 [2]). The
-8- -9- No. 83
recommendations, upon becoming effective, would “supersede, where appropriate,
inconsistent provisions” of Executive Law § 169 and Legislative Law §§ 5 and 5-a (id.).
Following four public meetings, the Committee recommended increasing the base
salaries of members of the Legislature from $79,500 to $110,000 on January 1, 2019, and
that all stipends under Legislative Law § 5-a be set at zero except for the stipends of
approximately a dozen legislators. Additionally, the Committee recommended increasing
the salaries of the Attorney General, Comptroller and the officers listed in Executive Law
§ 169. The Legislature did not subsequently modify or abrogate any of the Committee’s
recommendations. Thus, in accordance with the act, the recommendations acquired “the
force of law” (L 2018, ch 59, part HHH, §§ 1, 4 [2]).
Plaintiffs, three New York resident taxpayers and one member of the New York
State Assembly, commenced this action for declaratory and injunctive relief against
defendants, the State of New York and Thomas DiNapoli, in his official capacity as New
York State Comptroller. Plaintiffs asserted that the enabling act unconstitutionally
delegated legislative authority to the Committee. Supreme Court granted, as relevant here,
defendants’ motion to dismiss plaintiffs’ claims regarding salary increases for statewide
elected officials and commissioners, and the salary increase recommended for legislators
beginning in 2019.5 Upon plaintiffs’ appeal, the Appellate Division unanimously modified
5 With respect to legislative salary increases to become effective on January 1, 2020 and beyond, the Committee also recommended placing a 15% cap on outside earned income and prohibiting the receipt of income in certain professions where a fiduciary duty is owed. Supreme Court concluded that the Committee exceeded its authority by recommending these limitations and, because the legislative salary increases recommended for 2020 and 2021 were intertwined with those recommendations, the court declared those salary -9- - 10 - No. 83
the judgment to the extent of issuing a declaration that the enabling act had not been shown
to be unconstitutional, and otherwise affirmed (194 AD3d 98 [3d Dept 2021]). The Court
concluded that plaintiffs’ argument was “foreclosed by [its] decision in Center for Jud.
Accountability Inc. v Cuomo . . . , wherein [the Court] upheld a nearly identical delegation
of authority regarding judicial compensation” (id. at 103 [internal citation omitted]). The
Appellate Division also rejected plaintiffs’ arguments that the enabling act was invalid
because the Governor did not maintain veto power over the Committee’s recommendations
(id. at 104) and because the New York Constitution provides that legislative compensation
is to be “fixed by law” (NY Const, art III, § 6), which plaintiffs construed as meaning
“codified in a published statute passed by the Legislature itself” (194 AD3d at 105).
Finally, the Court held that the Committee did not exceed the scope of its authority under
the enabling act (id. at 107).
Plaintiffs now appeal as of right from the Appellate Division order.
III.
increases to be null and void. Inasmuch as defendants did not cross-appeal, any issues regarding the propriety of those recommended salary increases are not before us. Similarly, to the extent that the Committee may have recommended a slight decrease in the total salary and allowance for the senator holding the office of Vice President pro tempore—who, incidentally, was not reelected in 2018 and, therefore, experienced no salary decrease beginning in 2019 under the enabling act (see Vivian Wang, Democratic Insurgents Topple 6 New York Senate Incumbents, NY Times, Sept. 13, 2018; Jesse McKinley, No Lulus for You: Comptroller Threatens to Withhold Lawmakers’ Payments, NY Times, March 16, 2018)—no party has challenged the Committee’s actions on the ground that one legislator would have experienced a decrease in compensation. Thus, the dissent’s reliance on that recommendation is misplaced (see dissenting op at 12-13).
- 10 - - 11 - No. 83
The New York Constitution dictates that “[t]he legislative power of this State shall
be vested in the Senate and the Assembly” (NY Const, art III, §1) and, therefore, “the
Legislature cannot pass on its law-making functions to other bodies” (Matter of Levine v
Whalen, 39 NY2d 510, 515 [1976]). “The Legislature may not,” for example “grant the
power to repeal general statutes” (Matter of Benvenga v LaGuardia, 294 NY 526, 533
[1945]). This Court has long recognized, however, that although the Legislature alone may
exercise powers inherently and exclusively legislative, “there is a large field in which the
[L]egislature . . . may certainly delegate to others powers which the [L]egislature may
rightfully exercise itself” (Matter of Trustees of Vil. of Saratoga Springs v Saratoga Gas,
Elec. Light & Power Co., 191 NY 123, 138 [1908] [internal quotation marks omitted]). In
that vein, while “[t]he delegation of power to make the law, which necessarily involves a
discretion as to what it shall be, cannot be done, . . . [t]he Legislature may constitutionally
confer discretion upon an administrative agency [or a commission] . . . if it limits the field
in which that discretion is to operate and provides standards to govern its exercise” (Levine,
39 NY2d at 515).
Indeed, the Constitution expressly provides:
“Subject to the limitations contained in this [C]onstitution, the [L]egislature may from time to time assign by law new powers and functions to . . . commissions . . . and increase, modify or diminish their powers and functions. Nothing contained in this article shall prevent the [L]egislature from creating temporary commissions for special purposes”
(NY Const, art V, § 3). In the past, such commissions have proposed substantial revisions
to substantive bodies of statutory law that were subsequently enacted by the Legislature.
- 11 - - 12 - No. 83
For example, the constitutionality of the enabling act creating the temporary state
commission to recommend a comprehensive revision and simplification of the penal law
and the code of criminal procedure (the Bartlett Commission) was upheld under article V,
§ 3 (see People ex rel. Dudley v West, 87 Misc 2d 967 [Sup Ct, Kings County 1976]; L
1961, ch 346 [creating the Bartlett Commission]).
So too here, we conclude that the enabling act was a valid “assign[ment] by law [of]
new powers and functions to” the Committee (NY Const, article V, § 3) even though this
case is distinguishable from those involving the Bartlett Commission because the enabling
act provided that the Committee’s recommendations, unlike those of the Bartlett
Commission, were to go into effect by operation of law, and without further action by the
Legislature or opportunity for direct gubernatorial input. The Constitution expressly
permits the Legislature to assign new powers and functions to such commissions, if
constitutional. We now hold that an assignment is valid under article V, § 3 where the
Legislature creates a temporary commission with a discrete purpose, and has not delegated
the power to make the law or divested the executive branch of supervision but set standards
on the exercise of authority through appropriate guidance sufficient to prevent the
commission from intruding on the Legislature’s law-making function. In the enabling act,
the Legislature fulfilled its exclusively legislative function by exercising its “discretion as
to what [the law] shall be” (Levine, 39 NY2d at 515)6 and assigned a discrete and limited
6 Our cases involving legislative nondelegation do not provide the controlling standard by which we review the constitutionality of the enabling act. However, in “recogniz[ing] that executive or administrative rulemaking may entail some policy selectivity without offending separation of powers doctrine, so long as the basic policy choices have been - 12 - - 13 - No. 83
objective to the temporary Committee—i.e., the Committee was tasked with determining
initially if salaries are adequate and if not, recommending appropriate changes. The
Legislature further provided standards7 to govern the Committee in the exercise of its
assigned authority and retained the authority to reject or modify the Committee’s
recommendations, as it deems appropriate, before those recommendations became
effective.
Put differently, the Legislature has made the basic policy determination that salaries
for its members, statewide public officials and agency commissioners must be “adequate”
(L 2018, ch 59, part HHH, § 1) and directed the Committee to recommend prospective
compensation increases for legislators and certain other state officers, in accordance with
the standard set forth in the enabling act. The Legislature has not “delegate[d] power to
enact or repeal laws, or to establish policies and standards” (Peter J. Galie & Christopher
Bopst, The New York State Constitution, 113 [2d ed 2012]). Rather, the field in which the
Committee’s discretion was to operate was appropriately limited (cf. Levine, 39 NY2d at
515). Essentially, the Committee was to recommend salary figures for a limited number
of state elected officials and state officers. Moreover, the enabling act provides the
made and articulated by the Legislature” (Dorst v Pataki, 90 NY2d 696, 699 [1997]), this Court has necessarily spoken to the essence of the exclusive law-making function that cannot be conferred to another body. Contrary to the dissent (dissenting op at 16-17), we believe that question is relevant here. 7 Such standards are necessary because “the Legislature is powerless to delegate the legislative function unless it provides adequate standards. Without such standards there is no government of law, but only government by [individuals] left to set their own standards, with resultant authoritarian possibilities” (Rapp v Carey, 44 NY2d 157, 162 [1978]). - 13 - - 14 - No. 83
standards and policies that govern the Committee’s exercise of its authority (cf. id.) via
eight nonexclusive factors that the Committee was directed to consider in analyzing
whether the salaries should be increased and that provided a framework within which the
Committee was to perform its assigned function.8 The Committee’s authority was further
cabined by the requirement that it submit its report directly to the Legislature and the
Governor, so that the Legislature could modify or reject the Committee’s recommendations
before they became effective. Under these circumstances, the enabling act is valid under
article V, § 3.
To be sure, the enabling act differs from other statutes creating temporary
commissions in that the Governor, by signing the act, has agreed to constrain the
executive’s role in approving the recommended compensation increases for legislators and
various executive state officers. The enabling act is, in this respect, distinguishable from
Laws of 2005 (ch 63, Part E, § 31), which created the so-called “Berger Commission” to
recommend closure and consolidation of existing health care facilities. The 2005 statute
provided the Commission’s report was submitted to the Governor and only upon
8 The enabling act directed the Committee to “take into account all appropriate factors including, but not limited to: the parties’ performance and timely fulfillment of their statutory and Constitutional responsibilities; the overall economic climate; rates of inflation; changes in public-sector spending; the levels of compensation and non-salary benefits received by executive branch officials and legislators of other states and of the federal government; the levels of compensation and non-salary benefits received by comparable professionals in government, academia and private and nonprofit enterprise; the ability to attract talent in competition with comparable private sector positions; and the state’s ability to fund increases in compensation and non-salary benefits” (L 2018, ch 59, § 1, part HHH, § 2 [3]). Any additional factors considered by the Committee would, necessarily, have to be of a similar nature and kind to the factors listed in the statute. - 14 - - 15 - No. 83
gubernatorial approval did the report become effective by operation of law when the
Legislature declined to pass a concurrent resolution rejecting it (id. § 31 [9]). Here, in
contrast, the Governor’s approval of the Committee’s report was not required prior to it
becoming effective by operation of law. Moreover, the Committee differs from the
commissions created in 2010 and 2015 in that each branch of government independently
appointed the members of those commissions, while the enabling act named the five
members of the Committee, only four of whom served (compare L 2010, ch 567, § 1 [b]
and L 2015, ch 60, Part E, § 3.1 with L 2018, ch 59, part HHH, § 1).
Because any “assign[ment] by law [of] new powers and functions to . . .
commissions” is “[s]ubject to the limitations contained in [the state] constitution” (NY
Const, art V, § 3), we must also consider whether the enabling act violates the separation
of powers doctrine. The separation of powers doctrine is “the bedrock of the system of
government adopted by this State in establishing three coordinate and coequal branches of
government, each charged with performing particular functions” (Maron, 14 NY3d at 258).
“While the doctrine of separation of powers does not require the maintenance of three
airtight departments of government, it does require that no one branch be allowed to
arrogate unto itself powers residing entirely in another branch” (Under 21, Catholic Home
Bur. For Dependent Children v City of New York, 65 NY2d 344, 356 [1985]). Because
“[i]t is the correlative oversight of each lawmaking Branch over one another—in essence
a dependency, rather than a separation—that balances the overall power to protect the
public’s interests,” the state constitution prohibits “the ultra vires surrender of power to
any other Branch” (Cohen v State of New York, 94 NY2d 1, 13 [1999]). Here, no such
- 15 - - 16 - No. 83
surrender of power occurred. In signing the enabling act, the Governor assented, having
no objection to the Legislature’s determination of what the law should be, the specific
members named to the Committee in the statute, or the process that tightly circumscribed
the Committee’s discretion. The Governor, of course, had the opportunity to express any
objections by vetoing the enabling act, but did not do so. Nor did the Governor cede any
authority to propose different legislation in the future or to veto future legislation.9
“[W]hen and where the Constitution requires the courts to act within prescribed
authority, we do not hesitate to decide even the most sensitive governmental disputes”
(Cohen, 94 NY2d at 15). In this case, absent a constitutional violation, it would be “unwise
for the courts “to substitute our own determination for that of the Legislature even if we
would have struck a slightly different balance on our own” (id. at 14-15).
IV.
Our determination that the enabling act was a valid assignment of power to the
Committee finds support in this Court’s prior cases. Indeed, this Court long ago addressed
the very issue we decide today in the context of judicial salaries and recognized that the
9 We note that the Committee did not fully cut the Governor out of the compensation- setting process. Rather, the Committee recommended that the Governor set the salary of two tiers of Executive Law § 169 Commissioners within a specified range. Nevertheless, we caution courts considering the validity of enabling acts that result in the executive branch effectively waiving veto power or review over the actions of temporary commissions empowered to make recommendations inconsistent with existing statutes that such enabling acts should be closely scrutinized to ensure that the limitations on the scope of the authority assigned to the commission included in the legislation are appropriate under the circumstances to prevent such bodies from either intruding upon the Legislature’s law-making function or rendering “the legislative power” immune to “executive supervision and control” (4 Lincoln, The Constitutional History of New York at 497). - 16 - - 17 - No. 83
Legislature may authorize, by statute, other governmental entities to determine whether
judicial salaries should be increased beyond the amount set by statute to the extent that
those entities may deem proper (see Benvenga, 294 NY at 530-531, citing Judiciary Law
former § 143; see also 4 Charles Z. Lincoln, The Constitutional History of New York at
595-596 [1906]). Plaintiffs and the dissent provide us with no basis for distinguishing
judicial compensation from legislative or executive compensation in this respect.
In observing that the Legislature may authorize other governmental bodies to
determine whether an increase in judicial salaries was warranted beyond the level set forth
by statute, the Benvenga Court necessarily recognized that the Legislature could convey
the authority to “supersede” or modify the statute setting judicial salaries to that limited
extent.10 Similarly, here, because the enabling act properly empowered the Committee to
determine whether the salaries of certain state officers “warrant[ed] an increase” (L 2018,
10 The dissent objects to our use of the word “supersede,” rather than “repeal” (dissenting op at 11). We use the word “supersede” because that is the word used by the Legislature in the enabling act itself (see L 2018, ch 59, part HHH, § 4 [2]). The dissenters further object that we are “[u]nable to seriously contend that the Legislature itself repealed the preexisting statutes” (dissenting op at 11). We do not make any such contention because we recognize that the preexisting statutes have not been repealed—the relevant statutes remain on the books. Here, the Legislature conferred limited authority to determine whether the compensation of the state officers listed “warrant[ed] an increase” above the levels contained in the published statutes (L 2018, ch 59, part HHH, § 2 [2]). The dissenters acknowledge that this Court approved of that practice in the context of judicial salaries (dissenting op at 29, citing Benvenga, 294 NY at 530) and they provide no convincing explanation for why legislative salaries should be treated differently or why this Court should not follow Benvenga under the doctrine of stare decisis (see Matter of State Farm Mut. Auto Ins. Co. v Fitzgerald, 25 NY3d 799, 819 [2015] [“Even under the most flexible version of the doctrine applicable to constitutional jurisprudence, prior decisions should not be overruled unless a compelling justification exists for such a drastic step” (internal quotation marks and citation omitted)]). - 17 - - 18 - No. 83
ch 59, part HHH, § 2 [2]), then by necessary implication the enabling act itself must be
read to have provided that the Committee’s recommendations would supersede the statutes
setting forth the pre-existing salaries. In other words, in using the word “supersede” (L
2018, ch 59, part HHH, § 4 [2]), the Legislature simply made explicit that it was permitting
the Commission to engage in the process that this Court endorsed in Benvenga. In any
event, it was the enabling act itself, a duly enacted statute, that provided for the
supersession of prior inconsistent statutes, not a “committee of unelected individuals who
are not directly accountable to public opinion” (dissenting op at 26).
Moreover, such supersession was done for a narrowly defined purpose (see
generally McKinney, 41 AD3d at 252 [upholding the validity of the act creating the “Berger
Commission”]). Critically, the enabling act is not a broad assignment to a commission of
the authority to revise general statutes governing a substantive body of law without the
requirements that such revisions be approved by the Legislature and subject to review or
veto by the Governor (compare Hurley v Public Campaign Fin. & Election Commn., 69
Misc 3d 254 [Sup Ct, Niagara County 2020] [declaring unconstitutional L 2019, ch 59,
part XXX, § 1, which created a Commission to make recommendations for new laws
establishing a system of public campaign financing that would supersede existing Election
Law and State Finance Law provisions unless the recommendations were modified or
abrogated by statute] with Dudley, 87 Misc 2d 967 [Sup Ct, Kings County 1976]
[upholding the validity of the enabling act creating the Bartlett Commission, because the
Commission’s report comprehensively revising the state’s criminal statutes was to be
submitted to the Legislature, which remained responsible for enacting the revised
- 18 - - 19 - No. 83
statutes]). Rather, the Legislature made the basic policy choice and authorized the
Committee “‘to fill in details and interstices and to make [narrow, limited] subsidiary
policy choices consistent with the enabling legislation’” (Dorst v Pataki, 90 NY2d 696,
699 [1997], quoting Matter of Citizens For An Orderly Energy Policy v Cuomo, 78 NY2d
398, 410 [1991]) on an issue that we have previously recognized may be assigned. That
is, the assignment of authority here was not only consistent with our prior caselaw
addressing judicial salaries (see Benvenga, 294 NY at 530-531; see generally Larabee, 27
NY3d at 472), but also tightly cabined by the terms of the statute.11
In that regard, “‘[a] statute or legislative act is to be construed as a whole, and all
parts of an act are to be read and construed together to determine the legislative intent’”
(Frank v Meadowlakes Dev. Corp., 6 NY3d 687, 691 [2006], quoting McKinney’s Cons.
Laws of N.Y., Book 1, Statutes § 97). Although a de-contextualized reading of the
supersession clause could lead to the misimpression that it permits the Committee’s
recommendations to supersede any inconsistent provision of Executive Law § 169 and
Legislative Law §§ 5 and 5-a, the clause itself provides that supersession will occur only
“where appropriate” (L 2018, ch 59, part HHH, § 4 [2]). In determining when supersession
11 Inasmuch as the narrow scope of the enabling act is consistent with our prior instruction regarding the use of supersession to effectuate prospective judicial pay raises (see Benvenga, 294 NY at 530-531), we have no occasion to adopt a comprehensive test for determining when the enabling act of a temporary commission that provides for the supersession of certain terms in pre-existing statutes has crossed the line into an unconstitutional attempt to pass onto other bodies “powers inherently and exclusively legislative” (Trustees of Vil. of Saratoga Springs, 191 NY at 138) or interfered with the Governor’s role as an “essential element of the legislative system” (4 Lincoln, The Constitutional History of New York at 458). - 19 - - 20 - No. 83
would be “appropriate,” the clause must be read in tandem with the narrow, discrete
assignment of authority to determine the adequacy of the compensation for the specified
state officials. Therefore, under the enabling act, supersession is permissible only where
the Committee has determined that compensation is not adequate and would not extend to
a general, substantive revision of the statutes at issue (cf. Hurley, 69 Misc 3d at 260-261).
In short, we hold that there has been no unconstitutional assignment of power to the
Committee by the enabling act under the circumstances presented here.
V.
We further reject plaintiffs’ argument that the enabling act violates the requirement
that legislative salaries, as well as the salaries of the Comptroller and Attorney General, be
“fixed by law” under articles III, § 6 and XIII, § 7 of the New York Constitution. This
Court has not addressed the meaning of that phrase in depth, although we have noted that
the Legislature’s practice subsequent to amendment of the Constitution in the 1940s was
to “fix” legislative salaries via enactment of a “general law provision” (New York Pub.
Interest Research Group v Steingut, 40 NY2d 250, 256 [1976]) and that the “constitutional
constraints do not generally prohibit prospective [compensation] adjustments” (Cohen, 94
NY2d at 9). However, federal case law interpreting the Ascertainment Clause of the United
States Constitution, which states that “[t]he Senators and Representatives shall receive a
Compensation for their Services to be ascertained by Law” (US Const, article I, § 6), is
helpful on this question.
Pressler v Simon (428 F Supp 302 [D DC 1976], affd sub nom Pressler v
Blumenthal, 434 US 1028 [1978]) involved challenges both to a 1967 statute that
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authorized the creation of a quadrennial commission to make recommendations to the
President regarding rates of compensation for members of Congress, federal judges and
certain other federal governmental officers and to a separate act providing for automatic
cost-of-living adjustments (id. at 303). After receiving the commission’s report, the
President was required to submit his recommendations as to the exact pay rate for those
positions in the next budget message. Those recommendations would become effective 30
days later, i.e., they would supersede the previous salaries set by statute, unless one House
of Congress specifically disapproved of the regulations or Congress enacted a statute
establishing a different rate (see id.). Prior to enactment of the statute, “[f]or the almost
180 years since the ratification of the Constitution, the precise compensation of members
of Congress was always fixed from time to time by specific legislation without legislative
involvement by the President” (id.).
The D.C. District Court rejected the plaintiff’s arguments that the challenged
statutes violated either article I, § 1 of the Federal Constitution or the requirement of article
I, § 6 that congressional salaries must be “ascertained by Law.” Like the plaintiffs here,
the plaintiff in Pressler urged that “Congress is required itself to fix its pay” in a statute
“that specifically states the amount to be paid” and that this congressional “responsibility .
. . cannot, in effect, be delegated or by-passed in the fashion provided by the” challenged
legislation (id. at 305). The court refused to read the Ascertainment Clause so inflexibly,
reasoning that the plaintiff’s argument amounted to “essentially a matter of form rather
than substance” because “when Congress passed the Acts governing its compensation it
acted ‘by law,’” as required (id.). The court concluded that the word “ascertain” does not
- 21 - - 22 - No. 83
have “such a narrow and limiting effect that, as a matter of constitutional law, it was
intended to prevent the Congress from developing rational procedures of this type for fixing
congressional compensation by means other than enacting a specific statute fixing each
pay change” (id. at 305-306). Following procedural history not relevant here, the Supreme
Court summarily affirmed on direct appeal (Pressler v Blumenthal, 434 US at 1028).
In 1985, Congress amended the 1967 statute to eliminate the “legislative veto”
device by which Congress could reject executive action through the disapproval of only
one house, instead requiring a joint resolution passed by both houses and presented to the
President for signature (see Humphrey, 848 F2d at 215). The D.C. Circuit upheld the
statute as amended, reaffirming that “the Ascertainment Clause [i]s not to be read inflexibly
so as to require Congress to establish specific figures in specific legislation. Rather, it
suffice[s] that the procedures eventuating in the specific figures were set, i.e., ascertained,
by law” (id.). The Court observed that “Congress retained ultimate power to set its pay
through the already mentioned devices, such as rejection of the President’s
recommendations” (id. at 216). Inasmuch as the ultimate political responsibility to fix the
salary of members of Congress remained with Congress itself, “the animating purpose of
the Ascertainment Clause” was vindicated (id. at 215).
Similarly here, although the enabling act charges the Committee with the task of
recommending compensation levels for various state officers, the Legislature and
Governor both meaningfully participated in setting the salaries at issue and remain
politically accountable for the Committee’s actions because they enacted the statute that
created the process involving the Committee, and the Committee’s recommendations
- 22 - - 23 - No. 83
acquired the force of law only in the absence of legislative action. That is, compensation
is set according to the process set forth by the Legislature in a duly enacted statute signed
by the Governor and, therefore, remains “subject to statutory regulation” within the
meaning of the New York Constitution (4 Charles Z. Lincoln, The Constitutional History
of New York 765 [1906]). Moreover, the purpose of the 1948 amendment to the
Constitution to allow legislators to fix their own compensation “was to avoid ‘repeat[ing]
the error of inflexibility’ that had resulted from ‘fixing the compensation of legislators . . .
in the Constitution,’” while maintaining such political accountability (Dunlea, 66 NY2d at
268, quoting New York State Joint Legislative Committee on Legislative Methods,
Practice, Procedures and Expenditures, 1946 NY Legis Doc No. 31, at 170). To now read
article III § 6, along with article XIII, § 7, “inflexibly so as to require [the Legislature] to
establish specific figures in specific legislation” (Humphrey, 848 F2d at 215), as plaintiffs
urge us to do would run counter to the purpose of the 1948 amendment. Inasmuch as the
requirement in article III, § 6 that salaries be “fixed by law” was added to the State
Constitution for the purpose of “empowering the Legislature to determine its own
compensation ‘as is done in Congress’” (Dunlea, 66 NY2d at 268 [emphasis added]), we
conclude that Pressler and Humphrey provide persuasive authority that “it suffice[s] that
the procedures eventuating in the specific figures were set, i.e., [fixed] by law” (Humphrey,
848 F2d at 215).
This result is also consistent with New York law addressing judicial salaries, which
have been required by the State Constitution to be “established by law” since 1846 (see
1846 NY Const, art VI, § 7 [emphasis added]; see Maron, 14 NY3d at 251; 4 Charles Z.
- 23 - - 24 - No. 83
Lincoln, The Constitutional History of New York at 595-596 [1906]). In concluding in
Benvenga that the Legislature may confer the authority to determine whether Supreme
Court Justices’ salaries should be increased, even though those Justices “are State officers
whose compensation must be prescribed by the Legislature,” the Court stated “that [such]
power has been recognized and exercised since 1852” (294 NY at 530, relying on People
ex rel. Morris v Edmonds, 15 Barb 529 [1853], supra).12 Morris explained that, in
mandating that judicial salaries be established by law,
“[t]he [C]onstitution does not require that the amount of compensation shall be specified in any general statute. It calls for legislative action. That is the required basis, but the superstructure may be fashioned pursuant to such provisions as may be established by the [L]egislature. An act is as essentially accomplished by law when performed pursuant to a statute, as if consummated by the statute itself”
(id. at 533-534). Those words, endorsed by this Court in Benvenga nearly 100 years after
they were written and echoed by the federal courts in Pressler and Humphrey over 100
12 The Court noted that “[o]n five separate occasions during a period of nearly one hundred years, the Legislature has enacted legislation permitting the city to provide for additional compensation” for Supreme Court Justices (Benvenga, 294 NY at 534). The Court’s reference to that power being “recognized and exercised since 1852” (id. at 530) was an acknowledgement that the power that the dissent here assails as undermining the very structure of the lawmaking process has been exercised and upheld since the phrase “established by law” first appeared in the New York Constitution the mid-19th century. That this Court recognized the validity of such a power in 1945, one year before the amendment providing that legislative salaries must “be fixed by law” was proposed, is highly relevant to our understanding of the provision because it is a critical “circumstance[] and practice[] which existed at the time of the passage of the constitutional provision” (Steingut, 40 NY2d at 258). Contrary to the assertions of plaintiffs and the dissent, the Legislature’s practice since 1948 of “fixing” legislative salaries via enactment of a “general law provision” (Steingut, 40 NY2d at 256) does not dictate a conclusion that setting forth a salary in a statute is the only constitutional means of fixing legislative salaries. - 24 - - 25 - No. 83
years after Morris was handed down, remain authoritative today. After all, the
constitutional provisions require legislative and judicial compensation to be fixed or
established, respectively, “by law” (NY Const, arts III, § 6, XIII, § 7 and VI, § 25 [a]), not
“by statute.” Therefore, we decline to effectively overrule this long-standing interpretation
of our State Constitution by reading the words “by law” in articles III, § 6 and XIII, § 7 to
mean something other than what they have always meant in article VI, § 25 (a). The New
York Constitution may indeed use the term “by law” at times to mean “by statute,” but
under the provisions at issue in this appeal, the term “by law” includes the valid assignment
of the authority to determine whether the salaries of state officers should be increased.
VI.
Finally, we conclude that the Committee did not exceed its authority under the
enabling act with respect to the recommended salary increases before us on this appeal. It
is well settled that, where an agency or commission acts “in a manner not contemplated by
the legislative body,” the administrative actions will be struck down (Greater N.Y. Taxi
Assn. v New York City Taxi & Limousine Commn., 25 NY3d 600, 608 [2015]). At the same
time, an agency or commission that is “a creation of a legislative body . . . possesses the
powers expressly conferred by [that body in its enabling act], as well as those ‘required by
necessary implication’” (id., quoting Matter of City of New York v State of N.Y. Commn.
on Cable Tel., 47 NY2d 89, 92 [1979]).
The Legislature directed the Committee to determine whether the salaries of certain
state officials “warrant[ed] an increase” (L 2018, ch 59, part HHH, § 2 [2]), and that is
what the Committee did. To the extent the Committee also observed that the New York
- 25 - - 26 - No. 83
Legislature functions more like a full-time body than Legislatures in other states, the
Committee did not purport to convert the New York Legislature into a full-time body.
Rather, the Committee considered several of the statutory factors set forth in section 2 (3)
of the enabling act, such as “the parties’ performance . . . of their statutory and
Constitutional responsibilities;” “the levels of compensation and non-salary benefits
received by executive branch officials and legislators of other states and of the federal
government;” and “the levels of compensation and non-salary benefits received by
comparable professionals in government, academia and private and nonprofit enterprise.”
To the extent that the Committee recommended imposing limits on receipt of outside
income after 2019, the question of whether those limits exceeded its statutory mandate is
not before us on this appeal.
Similarly, the Committee did not exceed its authority by recommending a reduction
in the number of tiers in the salary structure governing Executive Law § 169 officers. The
Committee concluded that the then-existing six-tier salary structure was “out of date and
cumbersome” and did not “reflect the current sense of the importance of the various
agencies governed by these public servants.” The Committee recommended simplifying
the tier structure to “to better reflect scope of responsibility, complexity, budget and
workforce based on current data and account for ranges of income.” Because the enabling
act provided the Committee with the authority to examine the adequacy of the relevant
officials’ compensation and the tier structure governs that compensation, the
recommendation to reduce the number of tiers was “not inconsistent with the statutory
language or its underlying purposes” (Greater N.Y. Taxi Assn., 25 NY3d at 608 [internal
- 26 - - 27 - No. 83
quotation marks and citation omitted]). Rather, the recommendation of reducing the tier
structure to better reflect the workload of section 169 officers was simply a method to
achieve the enabling act’s stated policy goal. Likewise, the Committee’s recommendation
of salary ranges for Tier C and Tier D Commissioners cannot be said to be in conflict with
the enabling act inasmuch as that recommendation is related to the statutory factors of the
state’s “ability to attract talent in competition with comparable private sector positions; and
the state’s ability to fund increases in compensation and non-salary benefits” (L 2018, ch
59, part III, § 2 [3]).
VII.
In sum, plaintiffs have failed to overcome the presumption of constitutionality
accorded to the enabling act. Moreover, the Committee did not exceed its authority under
the statute. Accordingly, the order of the Appellate Division should be affirmed, with
costs.
- 27 - WILSON, J. (concurring):
In his 1965 Benjamin N. Cardozo memorial lecture, Chief Judge Charles Breitel—
then a Justice of the Appellate Division—explained that the three branches of government
could not easily be hived into “mutually exclusive compartments,” each with its own
-1- -2- No. 83
function (Charles D. Breitel, The Lawmakers, 65 Colum L Rev 749, 764 [1965]). Rather,
it was their collaboration in the lawmaking process that made the “system of checks and
balances” work (id.). Although we are not “a parliamentary government where the
Executive branch is also part of the Legislature,” (People v Tremaine, 281 NY 1, 12
[1939]), Judge Breitel reminded us that “lawmaking . . . viewed broadly in order to see the
forest in which the trees grow, fall[s] into no neat classifications” (Breitel, 65 Colum L Rev
at 764-765). Only when the branches of government are healthily balanced can the
lawmaking ecosystem flourish.
That same year, the Ideal Toy Company introduced the game Tip-It, “the wackiest
balancing game ever” (Library of Congress, Catalog of Copyright Entries: Third Series,
Books and Pamphlets Including Serials and Contributions to Periodicals, July-December
1965, at 1790 [1968]). In Tip-It, three equal posts were located equidistant from each other
around a structure balanced on a center support, with a much taller post in the center, atop
which a toy man balanced upside down on his nose. Players tried to remove weights of a
randomly prescribed color from one of three posts without tipping the balance too far in
any direction, which required shifting weights from post to post to obtain the prescribed
color without toppling the delicately balanced man. Although the man could endure some
swaying and leaning, maintaining balance was key.
Today, both authorities guide us as we ensure the balance of power is not “tipped
irretrievably in favor of” any one branch (cf. Anderson v Regan, 53 NY2d 356, 366 [1981
plurality]). It is our job to ensure that the players in the lawmaking process do not shirk
-2- -3- No. 83
their burden of overseeing one another and minding the public interest. I concur in
the result reached by the plurality: the Committee on Legislative and Executive
Compensation (the “Committee”) acted permissibly pursuant to a constitutional statute (L
2018, ch 59, part HHH [“Enabling Act”]), which authorized the Committee to set
“adequate levels of compensation” (Enabling Act § 1) for legislators and certain public
officers. However, I arrive at my conclusion concerning this unusual, if not wacky,
statutory scheme through reasoning that differs from that of the plurality. Although the
Governor signed the Enabling Act, the Act itself prevented the Governor from initiating
any further involvement in the legislative and public officer compensation process (except
to the extent that the Committee’s ultimate decision afforded the Governor modest
discretion within the ranges of certain tiers for some executive officers). The removal of
gubernatorial input, even though initially ceded by the Governor, is particularly concerning
in the context of legislative compensation because it leaves the Legislature as the only
governmental guardian of the public fisc in matters of its own salary.
The plurality concludes that this scheme does not unconstitutionally vest legislative
power in other bodies (see plurality op at 12). My concern with the Enabling Act is not
that the Legislature has ceded its authority to another body. Indeed, this is not a difficult
case under our legislative nondelegation doctrine. Rather, the Enabling Act is troubling
because it heavily constrained the executive’s role in a process where his influence was
especially important.1 The plurality spends much of its opinion applying caselaw that
1 Both the plurality and the dissent share some of my concern about the loss of executive superintendence (see plurality op at 16 n 9; dissenting op at 8, 17). But we do not -3- -4- No. 83
scrutinizes legislative attempts that may have overly empowered the executive. But our
doctrine of legislative nondelegation—designed to ensure that the “legislative power of
this state” not be unconstitutionally divested from the “Senate and the Assembly” (NY
Const, art III, §1; see generally Matter of Levine v Whalen, 39 NY2d 510, 515 [1976])—
does not easily apply, mutis mutandis, to questions of the diminishment of executive power,
which are the important questions raised by the Enabling Act. As we counseled in Matter
of Maron v Silver, “[s]eparate budgets, separate articles in the Constitution, and separate
provisions concerning compensation are all testament to the fact that each branch is
independent of the other” (14 NY3d 230, 259 [2010]). In Maron, we engaged in an analysis
suited to the judiciary’s “unique place in the constitutional scheme” to decide whether a
judicial compensation statute violated our separation of powers doctrine (id.). We must
conduct a similar inquiry for the Governor’s role in legislative and statewide official
compensation as well.
In brief, I find that the Enabling Act substantially weakens the Governor’s ability to
check excessive legislative and executive compensation. I am satisfied, though just barely,
that a narrow construction of the guideposts coupled with heightened judicial scrutiny (that
is, refusing to afford the usual deference we give to the decisions of executive branch
agencies) is sufficient to address the difficult separation of powers problem posed by this
statute. Providing the Governor a decision point after the Committee makes its
understand legal the nature of the problem of executive nonparticipation the same way, nor do we apply the same standard of review of the Committee’s actions. -4- -5- No. 83
recommendations, as was done with the Berger Commission, would have removed all
constitutional doubt.
We have long held that “[l]egislative enactments are entitled to ‘a strong
presumption of constitutionality’” (Dalton v Pataki, 5 NY3d 243, 255 [2005], quoting
Schulz v State of New York, 84 NY2d 231, 241 [1994]). We “strike them down only as a
last unavoidable result” (White v Cuomo, 38 NY3d 209, 216 [2022], quoting Matter of Van
Berkel v Power, 16 NY2d 37, 40 [1965]), and only where “every reasonable method of
reconciliation of the statute with the Constitution has been resorted to, and reconciliation
has been found impossible” (White, 38NY3d at 216, quoting Matter of Fay, 291 NY 198,
207 [1943]). Although the Enabling Act requires more reconciling than most legislative
enactments, we can sufficiently ensure that its structure does not overcome the
“appropriately heavy burden” imposed on those who would hold a law unconstitutional
(People v Viviani, 36 NY3d 564, 576 [2021]).
A.
The judiciary has blessed various forms of nongovernmental or quasi-governmental
entities for setting public compensation. Here, though, in creating and empowering the
Committee, the Legislature has departed from established precedent by weakening time-
honored procedural safeguards.
For much of New York’s recent history, the compensation of judges, legislators,
and numerous state public officials were outlined in statutes that were intermittently
updated by the Legislature.2 The result was a halting process whereby the Legislature
would not update pay for decades and then pass large, politically controversial raises once
inflation had embarrassingly eroded government salaries. William G. Joyce, the executive
director of the New York State Motor Truck Association perhaps explained the situation
best when he observed in response to a 1998 pay increase that “[i]f legislators and
commissioners had received a 3-4% increase each year over the last ten years there may
not have been the outcry that we see and hear in the media today” (Letter from William G.
Joyce to James McGuire, Dec. 10, 1998, Bill Jacket, L 1998, ch 630 at 11). He proposed
2 As the plurality notes, New York has historically embraced other compensation practices as well (see, e.g., plurality op at 2 n 1[describing legislative compensation practices]). Most notably, since at least the mid-nineteenth century, we have approved legislative attempts to create a “superstructure” by which judicial compensation decisions might be made (see plurality op at 24, quoting People ex rel. Morris v Edmonds, 15 Barb 529, 534 [1853]). We have also allowed the presiding justice—the “designated representative” of the legislature—to authorize a “reasonable sum . . . as compensation for the expenses and disbursements” to non-resident justices who were designated to sit in the First Department (see People ex rel. Follett v Fitch, 145 NY 261, 262-266 [1895]). Even further back, the Legislature authorized judges to take fees as part of their compensation (see, e.g., L 1818 ch 195, § 4), before the 1846 Constitution introduced the “established by law” requirement for the judiciary and explicitly prohibited fee taking in a separate section (compare 1846 NY Const art VI, § 7 [requiring compensation to be “established by law” for certain judges and justices] with 1846 NY Const art VI, § 20 [prohibiting any “judicial officer, except justices of the peace” from taking fees for personal use]). These and similar fee structures were gradually abolished as part of a state- and nationwide trend away from facilitative payments, which were increasingly thought to be “corrupt,” to overcompensate public servants, and to distort incentives (see generally Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940, at 114-124 [2013]).
Nevertheless, the supplementary compensation schemes of the nineteenth century typically added compensation on top of a salary scheme that was also outlined in statutes (see generally 4 Charles Z. Lincoln, The Constitutional History of New York 494, 593-598 [1906]). -6- -7- No. 83
“finding a means to ensure that salaries remain commensurate with economic conditions
without forcing a vote on this issue after each legislative election” (id. at 11).
As the plurality notes, the Legislature established the Special Commission on
Compensation (the “Commission”) (see L 2010, ch 567), in response to our decision in
Maron (14 NY3d 230), which declared as unconstitutional a policy of linking judicial
compensation to unrelated policy initiatives (see plurality op at 5). In Maron, we said that
“we expect[ed] appropriate and expeditious legislative consideration” of judicial salaries
(14 NY3d at 263). The 2010 act addressed our charge by providing that a newly constituted
Commission would meet every four years “to ensure that the proper salary level is set on a
regular basis” (Senate Introducer’s Mem in Support, Bill Jacket, L 2010, ch 567 at 8).
Importantly, the Commission was designed with an eye towards maintaining the
checks and balances associated with the statute-making and budgetary process outlined in
the Constitution (see Senate Introducer’s Mem in Support, Bill Jacket, L 2010, ch 567 at
8). For instance, each branch of government appointed members to the Commission, many
of whom could not be state employees or members of the state bar (L 2010, ch 567, § 1
[b]). Furthermore, the Commission provided information to each branch, which could
check the Commission if it overreached: after its deliberations, the Commission would
send a report containing its “findings, conclusions, determinations and recommendations”
to the Governor, Legislature, and Chief Judge, and, if not modified or repealed by April 1
of the year as to which the recommendation applied, the recommendations would have the
force of law unless overruled by statute (id. § 1 [h]). Looking back on this system in 2016,
we observed that “through this legislatively-created process, the issue of judicial
-7- -8- No. 83
compensation now receives consideration independent of other political matters” (Larabee
v Governor of the State of N.Y., 27 NY3d 469, 472 [2016]).
In 2015, the Legislature and the Governor expanded the ambit of the Commission
to include compensation for legislators, statewide elected officials, and certain other state
officers (see L 2015, ch 60, part E, § 2.1). Like its predecessor, this expanded Commission
included a series of checks and balances designed to emulate those outlined in the
Constitution. For instance, it retained the previous appointment system, giving each branch
a set number of appointees not subject to the approval of other branches (see L 2015, ch
60, part E, § 3.1). Recognizing the heightened perils involved in legislative and executive
compensation setting, the political branches provided heightened checks when considering
those salaries: for “any matters regarding legislative or executive compensation,” the
chair—appointed by the judiciary—would not be able to vote (id.). Importantly, that
recusal meant that the Governor’s appointees could not be as easily overruled (see id. §§
3.1, 3.7). Nor could the Governor steamroll the other branches, as all such
recommendations would require the vote of at least one member from each appointing
authority (id. § 3.7; see also L 2019, ch. 59, part VVV [requiring this procedural protection
be applied to all recommendations instead of only those covering legislative or executive
compensation]).
The 2015 Commission succeeded in issuing recommendations concerning judicial
compensation but failed to issue any recommendations concerning legislative or executive
salaries before its term expired. Therefore, the Governor and Legislature enacted the
Enabling Act that is at issue in this case. Like the Commission, the Committee created by
the Enabling Act had discretion to recommend compensation changes for legislators and
certain executive branch officials (see Enabling Act, §§ 1-3). Once it issued its
“recommendation,” the Committee’s decision would “have the force of law” unless
repealed by a statute (id. § 4.2). However, the Enabling Act weakened the checks and
balances that had constrained the Commission. For instance, its five appointees (only four
of whom ultimately served) were named in the statute instead of selected directly by
members of the relevant branches (see Enabling Act, § 1).3 Most notably, the Enabling
Act removed the provision in the 2015 law which had given the Governor’s appointees half
of the votes on matters of legislative and executive compensation, and it further relaxed the
requirement that one appointee from each branch had to sign on to all recommendations
involving legislative and executive compensation. Unlike its predecessor statutes or those
creating other force-of-law commissions (see, e.g., St. Joseph Hosp. of Cheektowaga v
Novello, 43 AD3d 139, 143 [4th Dept 2007], appeal dismissed 9 NY3d 988 [2007], lv
denied 10 NY3d 702 [2008] [upholding the Berger Commission, whose recommendations
“would not be implemented” unless the Governor transmitted the Commission’s report to
3 The Enabling Act envisioned a five-member Committee consisting of “the chief judge of the state of New York” (then Janet DiFiore), “the comptroller of the state of New York” (Thomas P. DiNapoli), “the chairman of the State University of New York board of trustees and 52nd comptroller for the state of New York (H. Carl McCall), “the comptroller for the city of New York” (then Scott M. Stringer), and the chairman of the city university of New York board of trustees and 42nd comptroller for the city of New York (William C. Thompson, Jr.) (Enabling Act, § 1). Chief Judge DiFiore did not serve on the Committee, however, so it only had four members. -9- - 10 - No. 83
the Legislature with his written approval]), the Enabling Act fully cut the Governor and his
representatives out of the compensation-setting process after the Governor signed the Act.4
B.
Due to its peculiar structure, the Enabling Act worked an unusual transfer of power.
The prototypical challenges to legislative “delegation” involve statutes that risk
excessively aggrandizing the executive branch by giving the executive branch the kind of
sweeping authority that belongs to the legislature.5 Here, the Enabling Act shifted power
from the executive (as well as the legislature) into the Committee. Furthermore, that
transfer of authority altered the balance of power between the legislative and executive
branches, creating a situation where the Governor might be completely divested of legal
authority to stop a lopsided appropriation to be paid directly to the legislators themselves.
This quis custodiet ipsos custodes problem raises significant constitutional questions under
4 The plurality notes that the Committee did not fully cut the Governor out of the compensation-setting process because it gave him limited authority to set the compensation for a subset of Executive Law § 169 commissioners (plurality op at 16 n 9). Although the fact that the relevant recommendations gave the Governor some additional authority over compensation renders those recommendations less suspect on executive power grounds, it does not address the fact that the Governor was still at the Committee’s mercy with regard to the structure of the scheme itself. 5 I use the word “delegate” here with caution, as the Legislature cannot delegate its authority: our Constitution vests “[t]he legislative power of this state . . . in the senate and assembly” and no one else (NY Const art III, § 1). The Legislature may, however, authorize others to take actions backed by the force of law. On occasion, such authorizations sweep widely enough that we must either narrow the construction of the statute to save it or else invalidate it as an unconstitutional delegation. Here I refer to the case law surrounding such statutes when I use the term “delegation” (see generally LeadingAge New York, Inc. v Shah, 32 NY3d 249, 281 [2018], Wilson, J., dissenting in part). - 10 - - 11 - No. 83
both the State Constitution’s “fixed by law” requirements (art III, § 6; art XIII, § 7) and by
extension our “[s]eparation of [p]owers [d]octrine” (Maron, 14 NY3d at 244).6
The structure of the New York Constitution reflects its concern about the “conflict
of interest” associated with public officials setting their own salaries (see New York Pub.
Interest Research Group, Inc. v Steingut, 40 NY2d 250, 258 [1976]). The most direct
check it places on legislators is the requirement that a legislator’s salary and additional
compensation may not be “increased or diminished during, and with respect to, the term
for which he or she shall have been elected” (art III, § 6; see Steingut, 40 NY2d at 258).
But it also creates a subtler check when it dictates that the compensation of legislators and
certain officials must be “fixed by law” (see art III, § 6; art XIII, § 7). Although “fixed by
law” does not mean that the dollar amounts of relevant salaries must be stated in a statute,
it does mean that the “two essential lawmaking bodies” (Cohen v State of New York, 94
NY2d 1, 12 [1999])—the Governor and the Legislature—must be meaningfully involved
in the process. By contrast, the Constitution removes the Governor entirely from her own
salary-setting process (and that of her lieutenant), instead requiring her salary “to be fixed
by joint resolution of the senate and assembly” (art IV §§ 3, 6). The way to explain the
6 Although the plurality notes (plurality op at 11-12) that the New York Constitution gives the legislature the power to “assign by law new powers and functions to . . . commissions,” the fact that it must do so “[s]ubject to the limitations contained in this constitution” (art V, § 3) means that article V, § 3 cannot end the analysis of the issue. I agree with the plurality to the extent that article V, § 3 allows the legislature to create commissions, but that provision merely begins our analysis of the Enabling Act’s constitutionality. Indeed, even the plurality notes that the legislature may assign new powers and functions to a commission only “if constitutional” (plurality op at 12).
disparate constitutional treatment of gubernatorial compensation on the one hand and the
compensation of legislators and public officers on the other is to understand that “fixed by
law” requires meaningful participation by both political branches of government. After
all, gubernatorial assent (or legislative override thereof) is what distinguishes a joint
resolution from law (see NY Const art IV, § 7).
This “separation of powers” approach to compensation represents one of the State
Constitution’s traditional responses to such conflicts of interest. Under the separation of
powers doctrine, one branch of government may not “dominat[e] or interfer[e] with the
functioning of another coequal branch” (Maron, 14 NY3d at 244). Separation of powers
is a somewhat misleading moniker for a system that often aims to control government
officials by “institutional interdependence rather than functional independence” (Cohen,
94 NY2d at 13-14, quoting Lawrence Tribe, American Constitutional Law 20 [2d ed.]
[internal emphasis omitted]). Indeed, the Constitution “makes the Governor a part of our
legislative system” and ensures that the “legislative power . . . vested in the senate and
assembly . . . [is] subject to executive supervision and control” (4 Charles Z. Lincoln, The
Constitutional History of New York 494, 497 [1906]; see also NY Const art IV, § 7).
Incorporating the Governor into the lawmaking process helps protect New Yorkers from
legislative overreach. As we have previously explained, “[i]t is the correlative oversight
of each lawmaking Branch over one another—in essence a dependency, rather than a
separation—that balances the overall power to protect the public's interests, not those
individuals who occupy the offices of those Branches at varying times . . . .” (Cohen, 94
NY2d at 13).
- 12 - - 13 - No. 83
Not only did the Enabling Act place the power to reject excessively generous
Committee recommendations of legislative compensation exclusively with the Legislature,
it created an additional conflict of interest. Namely, it placed initial compensation
decisions in the hands of a four-person Committee, one of whose members had a financial
stake in the outcome: as New York’s Comptroller, Thomas DiNapoli was a “statewide
elected official” (Enabling Act, § 2.1) whose salary was therefore in question. 7 Although
Comptroller DiNapoli judiciously recused himself from those deliberations, nothing about
the structure of the Committee required his recusal.
Given the particularly acute conflicts of interest associated with compensation, a
proper system of checks and balances was especially important. Instead, the Enabling Act
relaxed the established constitutional protections and introduced additional hazards.
C.
The Enabling Act’s destabilization of the checks and balances in setting
compensation is not so grave as if the Legislature had attempted to set its own
compensation through a joint resolution (cf. Matter of Moran v LaGuardia, 270 NY 450,
452-453 [1936]). Nevertheless, it reduces gubernatorial authority significantly more than
prior delegations to other committees and commissions.
7 The mere fact that the Comptroller was in a position to “determine [what] legislators shall be paid” raises yet another separation of powers concern (see Cohen, 94 NY2d at 17 [defending the statutory scheme by explaining how it “in no way authorize[d]” the Comptroller to wield authority over when legislators were paid]). We have no occasion to address that issue because no party has raised it. - 13 - - 14 - No. 83
The Governor approved the legislation creating the Committee. In signing the
legislation, the Governor also had some capacity to approve or reject the members of the
Committee, inasmuch as they were set forth in the text of the statute (see Enabling Act,
§ 1). Indeed, the Governor further facilitated the process by issuing a message of
necessity.8 On the other hand, unlike the 2015 authorizing legislation for the Commission,
the Enabling Act did not give the Governor free rein to appoint whomever he pleased, as
it explicitly listed the members of the Committee. Such a limit on the Governor’s
appointment authority is concerning as a constitutional matter because it risks stripping the
Governor of her appointment power and committing her to a single candidate chosen by
the Legislature (cf. Matter of Prospect v Cohalan, 65 NY2d 867, 874-875 [1985], Titone,
J., dissenting). Nevertheless, the Governor approved the Enabling Act and exercised some
control over its membership.
However, unlike prior commissions and committees, the Committee’s
recommendations automatically became law unless the Legislature blocked them, without
any opportunity for the Governor or his direct representatives to intercede. This structure
8 Generally, the New York Constitution requires that legislation be available to legislators for three calendar days before it becomes law, unless the governor certifies facts that necessitate an immediate vote on the bill (see art III, § 14). Because the budget bill with the Enabling Act in it was introduced on March 30, 2018 (see Budget Bill at 156, Bill Jacket, L 2018, ch 59), it could not be passed before the beginning of the fiscal year on April 1 without gubernatorial intervention. Given our Constitution’s appropriation requirement, failing to pass a timely budget can have serious consequences (see art VII, § 7). Given the tight timeline and significant consequences of failure to pass a budget on time, the Governor issued a message of necessity to facilitate its quick passage (see Message of Necessity, Bill Jacket, L 2018, ch 59 at 14). - 14 - - 15 - No. 83
stands in distinct contrast to the Berger Commission, whose recommendations were
transmitted first to the Governor, and which would proceed no further unless the Governor
transmitted them to the Legislature (see St. Joseph Hosp., 43 AD3d at 143).
Faced with substantial concerns about the Enabling Act, we must ask if it can be
construed in a way that permits it to pass constitutional muster (see White, 38NY3d at 216).
It can. To start, the structure of the Act itself heavily circumscribed the Committee’s
authority, articulated clear policy judgements, and subjected the Committee to searching
review from the courts. The Committee’s tightly cabined authority meant that its discretion
reached minimally beyond what the Governor would have foreseen when he authorized the
initial legislation, a process over which the Governor exercised constitutional control.
Because the Governor exercised sufficient control over the process given the Committee’s
narrow authority, the compensation of state legislators and statewide elected officials was
still “fixed by law” (art III, § 6; art XIII, § 7) and did not run afoul of our “[s]eparation of
[p]owers [d]octrine” (see generally Maron, 14 NY3d at 260).
The Enabling Act’s saving grace is that the Committee’s decisions must be
subjected to heightened judicial review. Given the constitutional precarity of the Enabling
Act, we must subject the Committee to heightened scrutiny to ensure that the derogation
of gubernatorial power is not excessive. As a general matter, we do not defer to the
Committee’s interpretation of its own jurisdiction because that is a pure question of
statutory interpretation (see Matter of Claim of Gruber, 89 NY2d 225, 231-232 [1996]).
Furthermore, where, as here, that jurisdiction is constitutionally suspect, we apply more
stringent interpretive methods to “avoid, if possible, interpreting a presumptively valid
statute in a way that will needlessly render it unconstitutional” (Overstock.com, Inc. v New
York State Dept. of Taxation and Fin., 20 NY3d 586, 593 [2013], quoting LaValle v
Hayden, 98 NY2d 155, 161 [2002]). We therefore look not to the most natural construction
of the statute, but the interpretation that avoids constitutional impropriety. Indeed, a
“tincture of constitutional doubt” may help us stomach an otherwise unpalatable
interpretation (see Matter of Jacob, 86 NY2d 651, 680 [1995], Bellacosa, J., dissenting).
This heightened scrutiny requires us to read the Enabling Act narrowly. First, the
Committee’s jurisdiction was highly cabined, limited to recommending specific amounts
of “compensation, non-salary benefits, and allowances” for statewide elected officials and
for the limited set of officials within two clearly defined statutory provisions, section 5-a
of the Legislative Law and section 169 of the Executive Law (Enabling Act, § 1).9 Second,
the Committee’s jurisdiction was circumscribed by eight nonexclusive factors (Enabling
Act, § 2.3).10 Thus, not only did the Enabling Act limit the authority of the Committee to
setting a small set of compensation numbers for a discrete number of governmental
9 The Committee’s recommendations also included limits on outside compensation and activities, but Supreme Court and the Appellate Division struck those recommendations, and the State has chosen not to challenge those rulings (2019 NY Slip Op 32723[U], 11- 16 [Sup Ct, Albany County 2019], affd 194 AD3d 98; see also Barclay v New York State Comm. on Legislative and Exec. Compensation, 65 Misc3d 685, 701-703 [Sup Ct, Albany County 2019] [finding the recommendations on outside income restriction were advisory and did not take on the force of law]). Thus, all that is at issue here is the compensation for legislators and specified executive branch officers. 10 Under the canon of ejusdem generis (backed by constitutional avoidance), even though the factors are termed “nonexclusive,” we may read these factors as constraining the otherwise open-ended delegation of “all appropriate factors” to factors that are similar to those enumerated (see People v Illardo, 48 NY2d 408, 416 [1979]). - 16 - - 17 - No. 83
officials, it created justiciable limits on the type of reasons the Committee could consider,
as the court below demonstrated by engaging with a challenge to the Committee’s
reasoning (see 194 AD3d 98, 106 [3d Dept 2021] [considering whether the Committee
exceeded its jurisdiction by finding that the Legislature functioned more as a full-time
body]).
These jurisdictional limits are important because they ensure that the Committee
may only make the kind of decisions expressly contemplated and approved by the
Governor. Were the Committee to set rates of compensation that substantially exceeded
(or fell short of) what a court decided would be “adequate” based on the enumerated and
similar factors (Enabling Act, § 1), heightened judicial scrutiny would substitute for the
Governor’s inability to rein in a runaway Committee.11
Even under this heightened standard of review, the Committee did not, as appellants
suggest, exceed its authorization when it gave the Governor a small amount of discretion
to set some executive officer compensation (see also dissenting op at 13).12 Given that the
11 Petitioners here do not contend that the salaries set by the Committee are excessive when measured against the enumerated factors; their complaint is purely about the unconstitutionality of the process, not the result. Supreme Court and the Appellate Division have demonstrated their vigilance in protecting the public in view of the Enabling Act’s diminishment of executive authority, and petitioners’ lack of complaint about the level of the salary increase to some degree confirms that vigilance.
12 In its compensation recommendations for C- and D-tier Executive Law commissioners, the Committee allowed the governor to choose within a tightly constrained range of options. For D-tier commissioners, compensation was $140,000-$170,000, while for C-tier commissioners, the salary was $175,000-$200,000. Furthermore, the governor was not permitted to decrease compensation during the same term of a specific commissioner - 17 - - 18 - No. 83
constitutional concern—and the correspondingly heightened review—is motivated by the
limitation of the Governor’s role in the decision-making process, the grant to the Governor
of some salary discretion within modest ranges tips the scheme somewhat back into
balance. Moreover, this additional authority was not so unprecedented or unexpected that
the decision was beyond the pale of what the Governor authorized or might have
anticipated. The Executive Law regularly permits the Governor to set specific
compensation within much wider ranges (see, e.g., Executive Law §§ 52 [5]; 57; 260; 271;
642). Executive Law § 169 even delegates some compensation-setting to non-
gubernatorial officials (see § 169 [3]). Although the Committee did not have carte blanche
to design a complex set of rules or institutions for setting compensation, it did have the
ability to set a statutory minimum and maximum and provide some discretion to the
Governor using a familiar statutory regime.
I turn next to two of the arguments advanced by my dissenting colleagues. First,
they contend that the Enabling Act’s supersession clause (§ 4.2) constitutes an
unconstitutional delegation of legislative power. But this statute is not a hard call under
our existing legislative nondelegation doctrine, and the supersession clause does not
change that analysis.
unless it was part of an across-the-board reduction applied evenly to all commissioners in the tier. - 18 - - 19 - No. 83
Second, the dissent argues that the State Constitution’s “fixed by law” provisions
(art III, § 6; art XIII, § 7) require that the salaries of legislators and statewide elected
officials be explicitly enumerated in statute. That reading is possible but finds limited
support in the history of the provisions and does not accord with the broader principles
embodied in the Constitution. A better reading of those provisions is that they require
meaningful input from the two lawmaking branches (see supra at 10-13), but still permit
the branches to authorize inferior bodies to exercise some amount of discretion.
The dissent misapplies our familiar nondelegation jurisprudence when it argues that
the Enabling Act delegated the power to repeal statutes to the Committee. Although the
legislature may not divest itself wholesale of the power to repeal general statutes, we do
not infer that the legislature has done so unless it speaks clearly (see Matter of Benvenga v
LaGuardia, 294 NY 526, 533 [1945]). In contrast to the dissent’s proposition that “[n]o
[safeguarding] ‘standards’ can excuse” the supersession clause (dissenting op at 17), the
supersession clause, in the context of this statute, is functionally inconsequential.
Under the dissent’s framework, the legislature could have passed an almost identical
piece of legislation to accomplish the same end. Suppose the legislature has passed a law
setting the compensation of all Executive Law § 169 commissioners as “adequate, as
determined by the Committee after taking into account all appropriate factors including,
but not limited to” the factors outlined in the Enabling Act. Had the legislature passed such
an act, a court would presume that the elements of Executive Law § 169 that were
inconsistent with the hypothetical statute and the Committee’s corresponding
- 19 - - 20 - No. 83
recommendations would be repealed by implication (see People v Mann, 31 NY2d 253,
268 [1972]). In other words, the supersession clause adds nothing to the dissent’s
constitutional argument: if the Committee had been structured exactly as the Berger
Commission was (that is, so that its structure was decidedly lawful), its recommendations
would supersede inconsistent laws with or without a supersession clause.
The problem with the dissent’s blanket prohibition on supersession clauses is that it
is unmoored from the problems the relevant constitutional provisions were designed to
address. As a result, it is difficult to figure out what types of familiar legislative actions
are constitutionally suspect under the dissent’s analysis. When we interpret the structure
and language of a constitution, we ask what the provision aimed to accomplish and interpret
the text in that light (see Steingut, 40 NY2d at 258). The dissent begins with the familiar
proposition that bicameralism and presentment promote transparency and deliberative
decision-making (see dissenting op at 7-8), but it quickly loses sight of those values in its
rush to condemn supersession clauses. The regime created by the Enabling Act is no less
deliberative or transparent than the permissible hypothetical statutory scheme outlined
above and we should treat it the same way we would the hypothetical act.
The supersession clause at issue here is amenable to our well-established test for
deciding whether the legislature has unconstitutionally delegated the “power to make the
law,” or whether the contested statutory provision merely “confer[s] authority or discretion
as to a law’s execution” (Levine, 39 NY2d 510, 515). I do not need to retread the
plurality’s application of this doctrine (see plurality op at 11-14). Suffice it to say that this
supposed delegation of lawmaking authority is far narrower than others we have upheld
(see, e.g., Levine, 39 NY2d at 516).
Supersession clauses do not raise novel constitutional problems from a legislative
nondelegation perspective. They do not inherently delegate the power to repeal or
supersede existing statutes, even though they sometimes authorize courts and public
officials to strike a law from “the books” (dissenting op at 13, quoting plurality op at 17 n
10)—books which are themselves assembled under delegated authority (see Public
Officers Law § 70-B [1]). Rather, the authorizing statute repeals or supersedes the
inconsistent laws and the other government entities apply the statute’s directives.
The fact that a law explicitly makes supersession contingent on the judgment of
another person or entity does not change that analysis, as the dissent’s own authority
explains. When the legislature passes a law, it may “provide that [the law] shall take effect
at some future period or upon the happening of some future event” (Corning v Greene, 23
Barb 33, 49 [Sup Ct, Albany Gen Term 1856]). That “future event” may include another
entity expressing its disapproval. Thus, the legislature may “provide that the law should
cease to exist, unless a party affected by it performed an act evincing consent to its
provisions” (id. at 52 [upholding as constitutional a provision that a statute would not come
into effect unless the corporation of the city of Albany consented to the bill]).
Although the dissent claims that “we have never approved a delegation of the power
to ‘supersede’ duly enacted statutes,” we in fact regularly afford inferior bodies
considerable discretion about which statutes to repeal or supersede (dissenting op at 12).
Statutes often do not explicitly provide for the “complete and automatic repeal” of
inconsistent legislation (dissenting op at 10), and the legislature implicitly or explicitly
authorizes other entities to implement its will. Thus, we often decide whether there is “an
inconsistency between the statutes which is such as to preclude giving effect to both”
(Mann, 31 NY2d at 268) in our own doctrine of implicit repeal, which does not seem to
bother the dissent (see dissenting op at 10). It is not clear whether the dissent would also
invalidate the common legislative practice of passing laws that supersede or repeal any
other inconsistent laws (or permit other existing laws to supersede them) but do not specify
the laws to which they refer. The dissent might read such a practice as an explicit
delegation of the power to repeal statutes to the courts or relevant officials charged with
compiling and enforcing them (see, e.g., Vehicle and Traffic Law § 385 [20] [“Any such
law, statute, ordinance, rule or regulation . . . shall to the degree inconsistent hereafter be
deemed null and void and shall not be enforced”]; General Business Law § 392-h; Public
Authorities Law § 2050-pp; State Finance Law § 97-oooo [3]).
Legislation regularly leaves decisions about the “concrete condition upon which
‘supersession’ [will] occur” to the “discretion” of non-legislative bodies (dissenting op at
10). For instance, we have twice approved regulations passed pursuant to General
Obligations Law (GOL) § 13-101 (3), which permits the transfer of claims except as
restricted by statute or where transfer “would contravene public policy” (see Matter of
Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 871-872 [2003]; Matter of General
Elec. Capital Corp. v New York State Div. of Tax Appeals Trib., 2 NY3d 249, 258 [2004]).13
13 The dissent claims that these cases do not concern supersession (dissenting op at 12 n 4) but does not explain why the statute there at issue—which authorizes courts and agencies - 22 - - 23 - No. 83
Courts have also explicitly blessed supersession clauses in our local government law
(Matter of Sherman v Frazier, 84 AD2d 401, 407-408 [2d Dept 1982]; see also Kamhi v
Town of Yorktown, 74 NY2d 423, 429-434 [1989] [“When municipalities act within their
supersession authority, even local laws that are inconsistent with the Town Law may be
valid . . . . [W]e hold that permitting the town to supersede Town Law § 274-a in its local
application . . . fits comfortably within [Municipal Law] section 10”]; Turnpike Woods,
Inc. v Town of Stony Point, 70 NY2d 735, 737 [1987]). Supersession is routinely applied
in our fire safety regulations, facilitating a statutory scheme that “reconcile[s] and
consolidate[s] existing fire prevention and structural regulations into a single, uniform code
. . . throughout the State” (cf Tarquini v Town of Aurora, 77 NY2d 354, 359 [1991]
[speaking about the scheme broadly though not addressing supersession]; see generally
Executive Law § 383 [1]; Labor Law § 275; People v Oceanside Inst. Indus., Inc., 15 Misc
3d 22, 25 [App Term, 9th and 10th Jud Dists 2007] [enforcing a supersession clause]; Sowa
v Zabar, 67 Misc 3d 1237[A], 2020 NY Slip Op 50772[U] [Sup Ct, NY County 2020]
[same]).
The dissent counters that “the Committee ‘superseded’ far more than just a salary
figure. It . . . . reorganized the statutory tier structure from six tiers to four and reclassified
to overrule the statute’s general decree that claims be transferrable whenever courts and agencies decide transfers would contravene public policy—is not an instance of supersession. Presumably under the dissent’s logic, the Enabling Act would have been constitutionally permissible had it merely said that salaries would be as written in the statute “unless such salaries would contravene public policy, in which case they will be set as appropriate by the Committee.” - 23 - - 24 - No. 83
officers among the tiers” (dissenting op at 13). The dissent does not explain what, if any,
legal implications the tier structure had aside from its effect on compensation. The “tier
structure” was simply a shorthand way of listing the amount to be paid to each enumerated
officer. If the Committee had first listed the pay of each officer in a dollar amount, one by
one, and then observed that 20 of them were at $120,000 annually, and called that “Tier
C,” what legal significance, in the context of “fixed by law,” could that possibly have?
Under the dissent’s view, the Committee’s recommendation would be less problematic had
it set the compensation of all tiers equal to one another, effectively nullifying the entire
structure; indeed, the Committee’s action would have been less problematic for the dissent
had it scrambled their order, giving Tier E commissioners the most, Tier A commissioners
the third-most, and Tier B commissioners the least, provided it did not also update their
names to put them in alphabetical order. It is hard to articulate why adjusting a shorthand
way of referring to salaries—with no legal significance beyond the dollar amount to be
paid to a particular employee—would change “far more than just a salary figure” such that
it would raise independent constitutional concerns (dissenting op at 13).
The Legislature specified what it wanted and left the Committee to execute its
vision. It put in place safeguards to ensure that the Committee’s discretion was not so wide
ranging as to constitute independent policy judgment. Nothing about the Enabling Act’s
supersession clause raises any novel or unprecedented legal issues in regard to our
legislative nondelegation doctrine. Holding otherwise would call into question at least a
century of jurisprudence and settled legislative practice.
- 24 - - 25 - No. 83
The dissent is closer to the mark on the whether the Enabling Act was consistent
with our Constitution’s “fixed by law” requirements (art III, § 6; art XIII, § 7). I agree with
the dissent that federal precedent on an analogous provision of the Federal Constitution,
which was made after the relevant amendments to our Constitution were adopted, is
persuasive at best (see dissenting op at 27-28). Our Constitution has a separate history and
structure and must be interpreted accordingly (see id. at 28). I also agree with the dissent
that “fixed by law” might, in some contexts, mean “fixed by statute” (see dissenting op at
24-25).
The fact that “fixed by law” might mean “fixed by statute” does not end our analysis,
however. In the context of the relevant constitutional provisions, we would need to ask
which meaning of “law”—statute or something more capacious—the Constitution was
using. Indeed, it is common in both the Constitution and our case law to use “law” or
“fixed by law” to refer to an order “established by competent authority” (Matter of Mutual
Life Ins. Co., 89 NY 530, 533 [1882]; cf. 1 William Blackstone, Commentaries on the Law
of England at *69 [William Carey Jones ed 1915] [adopting an influential declaratory
theory of law]).14 Even assuming that the Constitution uses the term “law” to mean
“statute,” in the sections in question, we would then need to ask whether a statute that
14 Construing the term “law” to mean “statute” and to exclude regulations, ordinances, or judicial decisions throughout the Constitution would lead to incongruous results (see, e.g., NY Const art I §§ 6 [the power of grand juries to inquire into the conduct of public officers “shall never be suspended or impaired by law”], 14 [“Such parts of the common law, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony . . . . shall be and continue the law of this state”]).
permits some discretion to non-legislative actors would suffice to fix compensation. The
dissent’s own authorities suggest that “fixed by law” does not preclude providing discretion
to other parties.15 As the dissent notes, the court in Healey v Dudley stated that “law”
meant “statute” in the context of a “fixed by law” provision, but that such a law could allow
the inferior body some discretion if to the extent that the act taken by the inferior body was
“obviously intended” by the legislature (dissenting op at 24, quoting 5 Lans 115, 119 [Gen
Term, 4th Dept 1871]).16 Unlike in the present case, the Healey court confronted a
constitutional provision whose history made clear that the phrase “by law” was meant to
wrest control away from county boards of supervisors, and it still allowed for the possibility
that the legislative fixing might permit some discretion to inferior bodies (see 5 Lans at
15 The dissent also relies on ambiguous dicta from People ex rel. Percival v Cram (164 NY 166 [1900]), but Percival is not helpful here (see dissenting op at 25). As the dissent notes, in Percival, we found that a statute did not apply to a dockmaster because he was an officer and therefore not covered by its provisions (see dissenting op at 25). Furthermore, the language of the constitutional provision referenced in dicta differs from the “fixed by law” requirement of article XIII, § 7 (compare NY Const art XIII, §§ 2 [“declared by law”], and 7 [“fixed by law”] with dissenting op at 28 [“Pressler interprets the word ‘ascertain’ . . . . (but) there is no dispute here as to the meaning of the term ‘fixed’ ”]). 16 I agree that the legislature may not delegate its authority, even if it “obviously intended” to do so (see dissenting op at 24 n 9; see also supra at 10 n 5). My point here is that the “fixing” required in the statute does not require the legislature to spell out the compensation in exacting detail in its statutes. Rather, the lawmaking branches might create general principles by which the compensation is fixed and leave the implementation to an inferior body, provided that their overall principles still guide the analysis. To the extent that this system reflects “basic principles of construction” (dissenting op at 24 n 9), it suggests that the lawmaking branches may fix compensation with the term “appropriate” accompanied by a set of relevant factors, and leave a delegee to implement the specific details pursuant to the statute’s guiding principles and identified factors. - 26 - - 27 - No. 83
117-118).17 Even in the context of that provision, it is not clear that the legislature could
not authorize some inferior bodies to exercise discretion over compensation. Indeed, our
broader judicial compensation jurisprudence has permitted the legislature to authorize
some discretion over compensation in the past (see, e.g., supra at 6 n 2).18
There is no such clarifying history here. As the plurality notes, we have long
recognized the importance of flexibility to the structure of the legislative “fixed by law”
provision (see plurality op at 23, citing Dunlea v Anderson, 66 NY2d 265, 268 [1985]).
Although I agree with the dissent that flexibility is not the only concern embodied by this
provision (see dissenting op at 26), the imperative for flexibility should color our
interpretation. In the absence of any authoritative historical evidence on this specific
question, we are left to reason from the Constitution’s text and structural principles. The
best way to balance the twin imperatives of flexibility and accountability is to ensure that
17 Brinckerhoff v Bostwick, also cited by the dissent (see dissenting op at 25), was a case interpreting a statute with similarly clear statutory history (see 99 NY 185, 191 [1885] [“The construction we give to this [statute] is made quite obvious if we trace the history of the law embodied therein.”]). 18 Even People ex rel. Noble v Mitchel (220 NY 86, 90 [1917]), which cites Healey, is somewhat cryptic about the discretion that is consistent with a “fixed by law” requirement (see dissenting op at 25). Although we agreed that the surrogate’s salary “must be fixed by the legislature,” we ultimately ruled that the surrogate’s salary must be held in abeyance because it would have increased his compensation during his term in violation of the constitution (Noble, 220 NY at 91). Had we thought the discretionary compensation scheme at issue violated the constitution’s fixing requirement, we presumably would have invalidated it rather than holding the compensation in abeyance. Whatever principle Noble established, it did not hold that such a discretionary compensation scheme violated the State Constitution’s fixing requirement. - 27 - - 28 - No. 83
the executive and the legislature both meaningfully participate in the process (see supra at
10-13).
The dissent protests that this arrangement leaves the public with “no one to hold
responsible other than the government at large” (dissenting op at 26). The public disagrees.
New York voters can untangle this scheme and hold their officials responsible (see, e.g.,
Jesse McKinley, Why N.Y. Lawmakers Think They Deserve a $50,000 Raise, NY Times,
Dec. 9, 2018). The legislature regularly authorizes administrative agencies to promulgate
rules with the force of law; the press and public usually figure out whom to hold responsible
even without “a vote of both chambers” (dissenting op at 26).
The dissent also tries unsuccessfully to read something into the fact that the
legislature set many of the relevant salaries in the past by writing the numbers directly into
the statutory text (see dissenting op at 27). “Legislative inaction, because of its inherent
ambiguity, affords the most dubious foundation for drawing positive inferences” (Borquin
v Cuomo, 85 NY2d 781, 787 [1995]). Here, there was not even a rejected proposal, as in
Borquin, but merely a failure to consider the specific scheme at issue today. Because it is
not clear why the legislature did not adopt this approach earlier, this is not strong evidence
for the dissent. We have previously upheld compensation practices that were not
contemplated by the 1946 legislature: for instance, adjusting future legislative salaries
during the lame duck period (Dunlea, 66 NY2d at 269), or withholding salaries until after
a budget has been passed (Cohen, 94 NY2d at 11), or retirement plans for state employees
(Borszeweski v Bridges, 37 NY2d 361, 367-368 [1975]). We should yet again recognize
that a scheme is not unconstitutional merely because it is novel.
- 28 - - 29 - No. 83
Essentially, the Legislature has removed a great deal of weight from the executive
branch in its version of Tip-It. Because the courts add enough weight to steady the balance
and keep this precarious structure from toppling, I concur in the result.
- 29 - SINGAS, J. (dissenting):
Our State Constitution prescribes procedures for the function of our government
that all branches are duty bound to follow. Instead of holding the legislature to that
principle, the plurality employs an “interpretive gloss” to excuse the legislature’s
unconstitutional actions, concluding in essence that they are “close enough to those other
cases” to pass constitutional muster. Indeed, one might be forgiven, after reading the
plurality opinion, for believing that this case concerned judicial pay raises. It does not.
This case involves different legislation, creating a different committee that was given a
different mandate. The law at issue represents the legislature’s attempt to unburden itself
of its unique constitutional power to pass and repeal laws and instead vest that power in a
group of unelected individuals, thereby avoiding the important safeguards of the
constitutionally mandated lawmaking process. It additionally violates specific
constitutional restrictions on how legislative and executive officer pay must be set. Despite
the plurality’s efforts to create one, there is no exception in the State Constitution for pay
raises. I dissent.
As part of a 2018 budget bill, the legislature created the Committee on Legislative
and Executive Compensation (Committee) to “examine, evaluate[,] and make
recommendations with respect to adequate levels of compensation, non-salary benefits, and
allowances pursuant to [Legislative Law §§ 5 and 5-a], for members of the legislature,
statewide elected officials, and those state officers referred to in [Executive Law § 169]”
(L 2018, ch 650, § 1, part HHH [Enabling Act], § 1). The Committee was to be made up
of the Chief Judge of the Court of Appeals along with
“the [C]omptroller of the [S]tate of New York, the chairman of the State University of New York board of trustees and 52nd [C]omptroller for the [S]tate of New York, the [C]omptroller for the [C]ity of New York, and the chairman of the [C]ity
[U]niversity of New York board of trustees and 42nd [C]omptroller for the [C]ity of New York” (id.).
The legislature tasked the Committee with determining whether “annual salary and
allowances of members of the legislature, statewide elected officials, and salaries of
[certain] state officers . . . warrant an increase” (id. § 2 [2]). The Committee was directed
to consider several nonexhaustive factors:
“[(1)] the parties’ performance and timely fulfillment of their statutory and [c]onstitutional responsibilities; [(2)] the overall economic climate; [(3)] rates of inflation; [(4)] changes in public-sector spending; [(5)] the levels of compensation and non-salary benefits received by executive branch officials and legislators of other states and of the federal government; [(6)] the levels of compensation and non-salary benefits received by comparable professionals in government, academia[,] and private and nonprofit enterprise; [(7)] the ability to attract talent in competition with comparable private sector positions; and [(8)] the state’s ability to fund increases in compensation and non-salary benefits” (id. § 2 [3]).
The legislation required the Committee to “make a report to the [G]overnor and the
legislature of its findings” by December 10, 2018 (id. § 4 [1]). The recommendations
would “have the force of law” and “supersede” inconsistent provisions of Executive Law
§ 169 and Legislative Law §§ 5 and 5-a unless modified or abrogated by statute prior to
January 1, 2019 (id. § 4 [2]).1 Lastly, the legislation provided that, after acquiring the force
1 Legislative Law § 5 set salaries for members of the legislature at $79,500 per year. Section 5-a provided additional allowances for members of the legislature serving as officers and in other special capacities. For example, pursuant to the statute, the Temporary President of the Senate receives an additional allowance of $41,500, and the Chairman of the Senate Judiciary Committee receives an additional allowance of $18,000. Executive Law § 169 provided the salaries of various state executive officers, such as the -3- -4- No. 83
of law, the Committee’s recommendations would remain in effect until amended or
repealed, either by statute or by act of the previously established Commission on
Legislative, Judicial, and Executive Compensation (id. § 7).
On December 10, 2018, the Committee—comprising Thomas DiNapoli, Carl
McCall, Scott Stringer, and Bill Thompson2—issued its report (see Report of the
Committee on Legislative and Executive Compensation [2018] [Report]). The Committee
recommended increasing the base salaries of members of the legislature from $79,500 to
$110,000 in 2019, $120,000 in 2020, and $130,000 in 2021 (id. at 5-6, 14-16). Effective
January 1, 2020, and beyond, the Committee recommended (1) eliminating certain
allowances for members of the legislature; (2) placing a 15% cap on outside earned income;
and (3) prohibiting the receipt of income in certain professions where a fiduciary duty is
owed (id.).
Regarding the executive branch, the Committee recommended that the salaries of
the Attorney General and State Comptroller be increased from $151,500, to $220,000 in
2020 (id. at 6, 17).3 Finally, the Committee made recommendations consolidating and
reorganizing the six tiers of commissioners in Executive Law § 169 to four tiers, and
Commissioner of Labor and the Director of the Office for the aging. It divided these positions into six tiers and set a salary for each tier. 2 Then-Chief Judge Janet DiFiore did not participate in the Committee. 3 The Report also made recommendations to raise the Governor and Lieutenant Governor’s salaries, but recognized that this could only be accomplished by a joint resolution of both houses of the legislature (see Report at 16; see also NY Const, art IV, §§ 3, 6).
proposed salary increases for 2019, 2020, and 2021 (id. at 6, 17-18). For tiers C and D, the
Committee set salary ranges, rather than a fixed salary (id.). The compensation each
individual commissioner would receive within that range would be determined by the
Governor (id.).
Following receipt of the Committee’s recommendations, the legislature took no
action. As a result, pursuant to the Enabling Act, all the Committee’s recommendations
purportedly “acquired the force of law” on January 1, 2019, superseding any “inconsistent”
provisions of Legislative Law §§ 5 and 5-a and Executive Law § 169.
In March 2019, plaintiffs brought this declaratory judgment action as citizen
taxpayers under State Finance Law § 123-b. Plaintiffs alleged, among other things, that
the Enabling Act unconstitutionally delegated legislative authority to the Committee and
violated the constitution’s requirement that legislative salaries be “fixed by law.” Plaintiffs
asked the court to declare invalid the Enabling Act and the Committee’s recommendations.
Defendants moved to dismiss the complaint for failure to state a cause of action.
Supreme Court granted defendants’ motion as to pay raises for the Comptroller,
Attorney General, and executive commissioners, and the 2019 pay raises for the legislature
(2019 NY Slip Op 32723[U] [Sup Ct, Albany County 2019]). The court found that the
legislature had given the Committee adequate guidelines to make recommendations for pay
raises such that the delegation of authority was constitutional (id. at *9-11). However, the
court concluded that the Committee exceeded its delegated authority by recommending
that certain activities be prohibited and that legislators’ outside earned income be limited
(id. at *12-15). Given that those restrictions on outside income were intertwined with the
2020 and 2021 legislative salary increases, the court invalidated those increases. The court
found these issues severable from the other issues, including the 2019 legislative salary
increase, and therefore upheld the remainder of the law (id. at *17-18). Though defendants
initially appealed the portions of Supreme Court’s opinion that invalidated the 2020 and
2021 legislative pay raises and limits on outside income and activities, they later withdrew
their appeal. Therefore, for legislators, only the portions of the Committee’s
recommendations eliminating certain allowances and providing a raise to $110,000
remained in effect, and legislators are not subject to any of the Committee’s recommended
restrictions on outside income.
The Appellate Division modified the judgment insofar as appealed from by plaintiff
to declare that the Enabling Act “has not been shown to be unconstitutional” and, as so
modified, affirmed (194 AD3d 98, 107 [3d Dept 2021]). Plaintiffs appealed to this Court
as of right (see CPLR 5601 [b] [1]).
The plurality fails to acknowledge the non-delegable core legislative function that
the Enabling Act vests in the Committee: the power to pass and repeal statutes. The
Enabling Act’s supersession clause gave the Committee discretion to determine which
provisions of certain statutes would stand and which would fall. Because a duly enacted
statute may be repealed only by another statute, this was an unconstitutional delegation of
legislative power.
-6- -7- No. 83
“The legislative power of this state shall be vested in the senate and assembly” (NY
Const, art III, § 1). Our Constitution has so provided since 1777, when those bodies were
established as the “supreme legislative power within this [s]tate” (1777 NY Const art II).
The legislative power
“covers every subject which in the distribution of the powers of gover[n]ment between the legislative, executive[,] and judicial departments, belongs by practice or usage, in England or in this country, to the legislative department, except in so far as such power has been withheld or limited by the Constitution itself, and subject also to such restrictions upon its exercise as may be found in the Constitution of the United States” (Lawton v Steele, 119 NY 226, 232-233 [1890], affd 152 US 133 [1894]).
The Constitution prescribes a carefully crafted procedure that the legislature must
follow when enacting a statute. Absent a statement of necessity from the Governor, a bill
must first sit on the desks of legislators for three legislative calendar days (NY Const, art
III, § 14). It must then receive a majority vote of each house (id.), and either be signed by
the Governor or passed by two thirds of both houses following the Governor’s veto (id.,
art IV, § 7).
This “constitutionally proclaimed, deliberative process” is the bedrock of the
legislative function (Matter of King v Cuomo, 81 NY2d 247, 254 [1993]), and serves
several important purposes. First, bicameralism adds “wisdom and experience to the
governing process,” as one house limits the power of the other (Peter J. Galie, Ordered
Liberty: A Constitutional History of New York 44 [1996]; see also INS v Chadha, 462 US
919, 948-949 [1983] [observing that the bicameralism requirement highlights the belief
among the Constitution’s framers that “legislation should not be enacted unless it has been
carefully and fully considered” by elected officials]). The delay requirement of article III,
§ 14 of our Constitution reflects similar concerns, ensuring that every member “know[s]
the precise character of the bill” and giving “the press an opportunity to communicate the
bill to the people, who would then have time to express their opinions concerning the
measure” before it becomes law (3 Charles Z. Lincoln, The Constitutional History of New
York 236, 239 [1906]).
Of equal importance is presentment, which ensures that the legislative power is
“subject to executive supervision and control” (4 Lincoln, The Constitutional History of
New York at 497). The Governor is an “essential element of our legislative system” (id.
at 458), and presentment provides the Governor the opportunity to “consider a bill from
several points of view, including its constitutionality, its relation to other legislation, and
also its policy or propriety, either general or particular” (id. at 499).
Our Constitution does not permit “the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be,” but it does allow the legislature to
“confer[ ] authority or discretion as to its execution, to be exercised under and in pursuance
of the law” (Moses v Guaranteed Mtge. Co. of N.Y, 239 App Div 703, 707 [1934]
[invalidating statute that gave power to suspend provisions of the Banking Law], revd on
other grounds, 264 NY 476 [1934]). Indeed, the legislature may delegate its nonlegislative
power “with reasonable safeguards and standards, to an agency or commission to
administer the law as enacted by the [l]egislature” (Matter of Levine v Whalen, 39 NY2d
510, 515 [1976]). Delegations of this sort can, and often do, authorize administrative
agencies to promulgate rules and regulations that have the force of law. Agency
rulemaking is not subject to bicameralism and presentment because it is not an exercise of
legislative power, but rather an exercise of “administrative” or “executive” power (see
Mistretta v United States, 488 US 361, 386 n 14 [1989] [“rulemaking power originates in
the (l)egislative (b)ranch and becomes an executive function only when delegated by the
(l)egislature to the (e)xecutive (b)ranch”]).
The Committee’s recommendations do not follow these established procedures, and
yet purportedly acquired the “force of law” and “superseded” existing statutes through the
legislature’s inaction. The Constitution does not recognize this legislative end-run.
By our constitutional design, the legislature cannot delegate “strictly,” “inherently,”
or “exclusively” legislative powers (Matter of Trustees of Vil. of Saratoga Springs v
Saratoga Gas, Elec. Light & Power Co., 191 NY 123, 133-138 [1908]; see Darweger v
Staats, 267 NY 290, 305 [1935])—“not to the people, not to administrative agencies, and
not to committees of the legislature itself” (Peter J. Galie & Christopher Bopst, The New
York State Constitution 112 [2d ed 2012]; see Corning v Greene, 23 Barb 33, 34 [Sup Ct,
Gen Term 1856] [“An attempt . . . to call in another party to aid in the business, and divide
the responsibilities, of legislation, so that . . . the sovereign function is discharged, in part
at least, by a party unknown and unrecognized by the fundamental law, would be in
contravention of the (C)onstitution, and render the act void”]). The power to enact and
repeal statutes is a nondelegable core legislative function (see Matter of Benvenga v
LaGuardia, 294 NY 526, 533 [1945]; People v Ryan, 267 NY 133, 137 [1935]; Matter of
-9- - 10 - No. 83
Davidson v Walker, 222 App Div 437, 439 [2d Dept 1928] [the legislature “may not
delegate the power to enact a statute, and, conversely, may not delegate the power to repeal
it” (emphasis omitted)], revd on other grounds, 248 NY 357 [1928]). The legislature can
repeal a duly enacted statute only by enacting another statute (Matter of Moran v
LaGuardia, 270 NY 450, 452 [1936]).
Though it is not clear exactly how to define the Committee’s recommendations—
and the plurality makes no effort to do so—they are indisputably not statutes. The
legislature did not vote on them and they were never presented to the Governor (see NY
Const, art IV, § 7). Because the recommendations are not statutes, they could only have
constitutionally replaced Legislative Law §§ 5 and 5-a and Executive Law § 169 if the
legislature independently repealed those provisions (see Matter of Moran, 270 NY at 452).
It did not.
No provision of the Enabling Act expressly provided for the repeal of those sections
nor provided for their complete and automatic repeal upon the Committee issuing its
recommendations. Any repeal is therefore both implied and conditional. Our precedent
recognizes implied repeal only where there is “an inconsistency between the statutes which
is such as to preclude giving effect to both” (People v Mann, 31 NY2d 253, 258 [1972]).
That is not the case here. Nothing on the face of the Enabling Act indicated which portions
of the preexisting statutes the recommendations would supersede, if any. Moreover, rather
than provide any concrete condition upon which “supersession” would occur, the
legislature left that decision to the Committee’s discretion. The Committee could decide
whether to supersede all, some, or none of the preexisting statutes. “While the [l]egislature
may delegate powers not legislative which it may rightfully exercise itself, it cannot under
the guise of conferring discretion confer authority to make the law” (Moses, 239 App Div
at 707 [citation omitted]). Conferring this discretion on the Committee gave it the power
to repeal statutes and, by implication, the power to enact them. Because the legislature is
prohibited from divesting itself of such powers, the Enabling Act’s delegation of the
supersession power is unconstitutional.
Unable to seriously contend that the legislature itself repealed the preexisting
statutes, the plurality avoids the word “repeal” altogether. As the plurality tells it, the
legislature did not delegate the power to repeal statutes, but merely the power to supersede
them (plurality op at 12-14, 17 n 10). There is no basis to draw a distinction between
supersession and repeal (see Supersede, Black’s Law Dictionary [11th ed 2019] [“To
annul, make void, or repeal by taking the place of . . . . (T)he 1996 statute supersedes the
1989 act”]). The power to supersede a statute is the power to repeal it. That power can be
exercised only through the lawmaking procedures mandated by the constitution.
In any event, the plurality maintains that we “addressed the very issue we decide
today” in Matter of Benvenga, and that this case requires nothing more than a
straightforward application of well-settled precedent (plurality op at 16). The plurality
cites additional cases, contending that this law is “similar” to prior laws and commissions
(see plurality op at 5 [2010 statute “closely resembles” the Enabling Act], 7 [describing a
“similar commission” created in 2015], 8 [characterizing the Committee as a “similar
body”]), even though this Court never passed on those prior delegations (see plurality op
at 4-9). Contrary to my concurring colleagues’ claims, we have never approved a
delegation of the power to “supersede” duly enacted statutes.4
The plurality asserts, in a footnote, that this dissent violates stare decisis by refusing
to acknowledge that this case is controlled by Matter of Benvenga (plurality op at 17 n 10).
There, the legislature established judicial salaries by statute and authorized a New York
City administrative board to provide additional compensation to local judges (see Matter
of Benvenga, 294 NY at 530-532, citing L 1928, chs 818, 819). The legislature intended
the additional locality pay to supplement judges’ compensation based on local needs, not
to change or replace the statutory salary (see id.; L 1928, chs 818, 819). The statutes at
issue there contained no supersession clause at all—and one was not necessary because the
legislature did not purport to give the City the power to alter or repeal existing statutes
regarding judicial pay.
The plurality finds “no basis for distinguishing” this case from Benvenga (plurality
op at 17). But the Enabling Act delegated more than just the authority to “determine
whether . . . salaries should be increased beyond the amount set by statute” (id.). It granted
4 Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib. (2 NY3d 249 [2004]) and Matter of Medical Socy. of State of N.Y. v Serio (100 NY2d 854 [2003]) do not concern supersession and are irrelevant to this discussion (see concurring op at 22-23). Moreover, the concurrence distorts the quote from Matter of Town of Aurora v Tarquini (compare 77 NY2d 354, 358 [1991] [“the legislation was designed to reconcile and consolidate existing fire prevention and structural regulations into a single, uniform code in order to provide a minimum level of protection for citizens throughout the (s)tate”], with concurring op at 23 [“Supersession is routinely applied in our fire safety regulations, facilitating a statutory scheme that “reconcile(s) and consolidate(s) existing fire prevention and structural regulations into a single, uniform code . . . throughout the State’ ”]). That case, involving administrative regulation of pool enclosures, has no bearing on the legislature’s ability to delegate the supersession power. - 12 - - 13 - No. 83
the Committee the distinct power to “supersede” inconsistent portions of preexisting
statutes, and in some cases provided decreased compensation. For example, in 2018, a
senator holding the office of Vice President pro tempore would have earned an annual base
salary of $79,500 and an additional allowance of $34,000, for a total annual salary of
$113,500 (see Legislative Law §§ 5, 5-a). The Committee eliminated that allowance; a
senator holding the same office now earns $110,000 annually—less than what the
Legislative Law mandates. And in recommending changes to Executive Law § 169, the
Committee “superseded” far more than just a salary figure. It gave an entirely different
branch of government the authority to set certain officers’ salaries within a range. It also
reorganized the statutory tier structure from six tiers to four and reclassified officers among
the tiers. True, one can still find Executive Law § 169 in the Consolidated Laws, but it is
hard to see how that statute “remain[s] on the books” in any meaningful way (plurality op
at 17 n 10). Matter of Benvenga simply does not concern the issue we decide here.
Nor does Matter of Maron v Silver (14 NY3d 230 [2010]) have any bearing on the
issues before us. In that case, we held “that the State had unconstitutionally compromised
the independence of the judiciary over the course of three years by linking any decision on
whether to increase judges’ salaries with other legislative initiatives such as the enactment
of legislative pay increases and campaign finance reform” (Larabee v Governor of the State
of N.Y., 27 NY3d 469, 473 [2016], citing Matter of Maron, 14 NY3d at 245-246, 260-261).
Matter of Maron had nothing to do with supersession. The portions of that opinion that
the plurality cites are nothing more than a factual reference to two failed bills that contained
- 13 - - 14 - No. 83
supersession clauses (see plurality op at 5). Our decision did not so much as mention those
clauses, much less uphold their constitutionality (see Matter of Maron, 14 NY3d at 245).
After Matter of Maron, the legislature created a Commission on Judicial
Compensation similar to the Committee at issue here (see L 2015, ch 60, part E). That
commission recommended judicial salary increases, which took effect without required
action from the legislature. In Larabee, we considered whether prospective salary raises
effected by the commission adequately remedied the past constitutional violation that led
to our decision in Matter of Maron (27 NY3d at 472). The plaintiffs sought money
damages as compensation for those past violations, which we denied (id. at 472, 475-476).
The plurality once again cites only the facts set forth in that opinion and agrees that this
Court never approved of the supersession clause (plurality op at 6 n 3).
In 2015, the legislature created another commission vested with the power to
supersede statutes, and again we did not pass on its constitutionality. The plaintiffs in that
case did not meaningfully challenge the validity of the supersession power, arguing instead
that the statute lacked adequate standards and safeguards (see Center for Jud.
Accountability, Inc. v Cuomo, 167 AD3d 1406, 1410-1411 [3d Dept 2018]; see infra at 15-
16 [explaining why this analysis does not apply to the present case]). We dismissed the
appeal on the ground that no substantial constitutional question was directly involved (see
- 14 - - 15 - No. 83
33 NY3d 993 [2019], never addressing the distinct constitutional question of supersession,
which is squarely presented here (see CPLR 5601 [b] [1]).5
If, as the plurality contends, the Enabling Act truly limited the Committee’s
authority to providing additional compensation above existing levels, then the supersession
clause itself would be superfluous, and the plurality need not defend it at all. But as
discussed above, the Committee’s authority was not so limited, and the plurality therefore
must attempt to defend this delegation. The plurality reasons that the legislature can
delegate the supersession power to a temporary commission, so long as the delegation is
for a “discrete purpose” (plurality op at 12) and is “tightly cabined” by adequate standards
and safeguards (plurality op at 19). That position finds no support in our law.
First, the Committee is not a temporary commission of a sort that this Court has
previously accepted (see NY Const, art V, § 3). In search of relevant precedent, the
plurality cites to cases involving the Bartlett Commission (plurality op at 12-13). That case
law is entirely inapposite. The Bartlett Commission “merely proposed legislation to the
[l]egislature, it did not enact the new law” (People ex rel. Dudley v West, 87 Misc 2d 967,
969 [Sup Ct, Kings County 1976]). The legislature subsequently adopted many of the
5 Insofar as the statute at issue in McKinney v Commissioner of N.Y. State Dept. of Health (41 AD3d 252 [1st Dept 2007]; see plurality op at 18) authorized a commission to supersede statutes—and it did not do so explicitly—we did not have occasion to address the issue (9 NY3d 891 [2007]). Additionally, the recommendations in that case could not become law without the Governor’s approval and were subject to rejection by concurrent resolution of the legislature. Whatever constitutional issues those mechanisms may have raised, they differ substantially from the process at issue here. - 15 - - 16 - No. 83
commission’s recommendations by statute passed by both houses and signed by the
Governor. Although the Committee and the Bartlett Commission differ in this most critical
regard, the plurality analogizes the two, reasoning that the Enabling Act was valid even
though it provided “that the Committee’s recommendations, unlike those of the Bartlett
Commission, were to go into effect by operation of law, and without further action by the
[l]egislature” (plurality op at 12). The plurality holds, in other words, that the Enabling
Act was valid even though the Committee’s recommendations, unlike those of the Bartlett
Commission, became law without following constitutionally mandated lawmaking
procedure.
The plurality then attempts to distinguish the Committee from the commission
invalidated in Hurley v Public Campaign Fin. & Election Commn. (69 Misc 3d 254 [Sup
Ct, Niagara County 2020]). That commission, like the Committee here, had the power to
make recommendations that would supersede inconsistent provisions of the Election Law
and State Finance Law (see id. at 258). Supreme Court invalidated that commission’s
enabling statute precisely because it “empowered the [c]ommission to legislate new law
and repeal existing statutes” without following the “proper procedure” (id. at 260-261).
The plurality ignores the clear similarities between the commission in Hurley and the
Committee in this case. Instead, it attempts to distinguish them on the grounds that the
Enabling Act, unlike the enabling statute in Hurley, contains reasonable safeguards and
standards that narrow the scope of the delegation (plurality op at 18, 20).
At this point, the plurality invokes the test we announced in Matter of Levine. That
test asks whether the legislature has provided adequate safeguards and standards such that
- 16 - - 17 - No. 83
an agency has the power merely to administer and execute the law, not the uniquely
legislative “power to make the law, which necessarily involves a discretion as to what it
shall be” (Matter of Levine, 39 NY2d at 515). It is irrelevant whether the legislature
provided adequate standards here, because the Committee was not charged with executing
or administering the law, and the plurality does not contend otherwise. The Committee
was charged with the exclusively legislative power to repeal statutes. The plurality offers
no rationale for borrowing our precedent concerning delegations of administrative and
executive power (see id.) and using it, without foundation, to justify supersession here
(plurality op at 12-15 and nn 6, 7). Whatever powers and functions the legislature may
constitutionally assign to a temporary commission under article V, § 3 cannot include
legislative powers and functions. Assigning these functions circumvents the constitutional
process and eliminates the Governor’s role. No “standards” can excuse that violation.6
6 As a practical matter, the “standards” and “safeguards” in the Enabling Act had no bearing on the Committee’s power to repeal duly enacted statutes. The Enabling Act merely set out the “factors”—such as “the overall economic climate” and “the ability to attract talent”—that the Committee could consider in making its determinations. It is hard to see how these “standards” served to “cabin” the Committee’s discretion in deciding which portions of the statutes to repeal (plurality op at 14 and n 8). And the Committee was robust in the exercise of its broad authority.
Moreover, contrary to the plurality’s interpretation, the phrase “where appropriate” in the Enabling Act’s supersession clause in no way limited the Committee’s discretion (see plurality op at 20). That phrase was clearly included to account for the fact that the preexisting law would remain unchanged if the Committee made no recommendation as to a subject, not to enforce the standard that the plurality supplies today. Nor did the provision permitting the legislature to modify or abrogate the recommendations by statute act as a meaningful safeguard against inappropriate recommendations (plurality op at 13). That provision merely restated the legislature’s inherent power to repeal statutes.
- 17 - - 18 - No. 83
The Constitution, not the legislature, provides the standards and safeguards required for
exercises of legislative power: bicameralism and presentment.
Based on “similar” cases never passed upon by this Court, case law involving
delegations of rulemaking authority to the executive branch, and promises of heightened
judicial scrutiny, the plurality holds that the legislature may assign exclusively legislative
power to a temporary commission where the commission has a “discrete purpose” and the
legislature “set[s] standards on the exercise of authority through appropriate guidance”
(plurality op at 12). This holding “undermines the integrity of the law-making process”
(Matter of King, 81 NY2d at 255). Requiring that the legislature adhere to the
constitutionally defined lawmaking process “is not some hypertechnical insistence of form
over substance, but rather ensures that the central law-making function remains reliable,
consistent[,] and exposed to civic scrutiny and involvement” (id.). Today’s decision fails
to do so.7 As a result, it is possible to foresee all manner of future committees, insulated
from the political process, to which the legislature may offshore certain lawmaking
responsibility.
7 Even accepting the plurality’s overly generous interpretation of our nondelegation rules, the supersession clause makes no mention of Executive Law § 40 (Comptroller compensation) or 60 (Attorney General compensation) (see Enabling Act § 4 [2]). Accordingly, under the plurality’s own analysis, the Committee’s recommendations to raise the Attorney General’s and Comptroller’s salaries from $151,000 to $220,000 had no legal effect because they were not within the purportedly “narrowly defined” power to “supersede” preexisting law addressing the same subject matter (see plurality op at 18, 19). - 18 - - 19 - No. 83
Today the plurality gives the legislature a pass. Perhaps this Court will eventually
draw a line to prevent further erosion of the legislature’s exclusive authority to exercise
lawmaking power.
The scope of the legislature’s power to set legislative and certain official’s salaries
is also expressly limited by specific constitutional provisions regarding that very subject.
The text and history of these constitutional restrictions require that a statute provide an
unchanging level of compensation for legislators and constitutional state officers. The
legislature also failed to comply with this mandate.
Since a legislative pay provision first appeared in the Constitution in 1821, the issue
of the amount of power to give the legislature in determining their own salaries has been
the subject of considerable debate. In 1821, the convention opted to provide for a salary
“ascertained by law” with a constitutional cap of three dollars a day (see 1821 NY Const,
art I, § 9). There was some debate about whether to impose a cap at all because “[p]ublic
opinion would . . . always regulate the sum, and it would be such as would be reasonable”
(Nathaniel H. Carter & William L. Stone, Reports of the Proceedings and Debates of the
Convention of 1821, at 420 [1821]). Others argued that there was no reason to think that
the legislature would not “pursue[ ] the very course which public opinion has condemned”
(id.). The convention ultimately agreed that allowing the legislature to fix salaries under a
certain cap would provide needed flexibility while protecting against overcompensation
(see 1821 NY Const, art I, § 9).
Skepticism for the legislature’s role eventually won out in 1846 when legislative
salaries were fixed at three dollars a day (1846 NY Const, art III, § 6). In 1874 this was
changed to $1,500 per year by amendment proposed by the Constitutional Commission
(id., as amended 1874) and in 1927 to $2,500 by general amendment (1894 NY Const, art
III, § 6, as amended 1927).
In 1946, the Joint Legislative Committee on Legislative Methods, Practices,
Procedures, and Expenditures proposed an amendment to remove a dollar amount from the
Constitution altogether, “[r]ather than repeat the error of inflexibility by fixing the
compensation of legislators and legislative leaders in the Constitution, and thus fail to
provide for changing conditions and circumstances” (Final Report of the New York State
Joint Legislative Committee on Legislative Methods, Practices, Procedures and
Expenditures, 1946 NY Legis Doc No. 31 at 170). This report urged the adoption of an
amendment “to permit the fixing of legislative salaries by law as is done in Congress,” (id.)
thereby “vesting the [l]egislature with the power to adjust salaries by law” (id. at 171). It
noted that exercising this power “of course, would require the consent of the Governor”
(id.). The joint commission was assured that the legislature would not abuse this power:
“Experience proves that empowered to determine the rate of its own compensation, the [l]egislature would be extremely conservative, if one may judge by the experience of Congress and state legislative bodies with the authority to change salary by law. In revising legislative salaries the [l]egislature and the Governor would necessarily always be guided by public opinion” (id.).
This proposed amendment, still in our Constitution today, was adopted by the people in
1948 and provides that “[e]ach member of the legislature shall receive for his or her
services a like annual salary, to be fixed by law” along with a per diem and other
allowances, both also “to be fixed by law” (NY Const, art III, § 6). For 70 years, from
1948 until the passage of the Enabling Act in 2018, the legislature enacted statutes fixing
legislators’ salaries in the Legislative Law. In 1948 it was set at $5,000 (L 1948, ch 20),
and was amended seven times by statute passed by a majority of both houses and signed
by the Governor between then and 1998,8 when it was fixed at $79,500 (L 1998, ch 630).
In its current form, Legislative Law § 5 still lists $79,500 as legislators’ annual salary.
Regarding executive officers named therein, the 1846 Constitution provided that
they should “receive . . . a compensation, which shall not be increased or diminished”
during their term in office (1846 NY Const, art V, § 1). The proposer of this provision
reasoned that leaving the issue to the legislature would “preserv[e] the accountability of
these public servants, and the amount of compensation they shall receive, to the
representative body” (S. Croswell & R. Sutton, Debates and Proceedings in the New-York
State Convention for the Revision of the Constitution 404 [1846]). Thus, it was left to the
“[l]egislature to fix the salaries” (Problems Relating to Executive Administration and
Powers, 1938 Rep of NY Constitutional Convention Comm, vol 8 at 121). The language
clarifying that this compensation must be “fixed by law” was added in 1874, upon an
amendment approved by the people (see 1846 NY Const, art X, § 9, as amended 1874)
keeping it “subject to statutory regulation” (4 Lincoln, The Constitutional History of New
8 L 1954, ch 314 ($7,500); L 1961, ch 946 ($10,000); L 1966, ch 809 ($15,000); L 1973, ch 386 ($23,500); L 1981, ch 55 ($28,788 in 1981, $30,804 in 1982, $32,960 in 1983); L 1984, ch 986 ($43,000); L 1987, ch 263 ($43,000).
York at 765). Pursuant to this provision, until this case, the Comptroller’s and Attorney
General’s salaries were fixed in Executive Law §§ 40 and 60, and periodically amended
by statute approved by both houses of the legislature and signed by the Governor. The
relevant constitutional language today remains unchanged, and provides that “[e]ach of the
state officers named in th[e] [C]onstitution shall, during his or her continuance in office,
receive a compensation, to be fixed by law, which shall not be increased or diminished
during the term for which he or she shall have been elected or appointed” (NY Const, art
XIII, § 7). In their current forms, Executive Law §§ 40 and 60 set the Comptroller’s and
the Attorney General’s salaries at $151,500. The Constitution imposes no specific
requirements as to the compensation of executive officers not named therein.
“In the construction of constitutional provisions, the language used, if plain and
precise, should be given its full effect” and “[i]t must be presumed that its framers
understood the force of the language used and, as well, the people who adopted it” (People
v Rathbone, 145 NY 434, 438 [1895]). The Constitution is “an instrument framed
deliberately and with care, and adopted by the people as the organic law of the [s]tate”
(Matter of King, 81 NY2d at 253 [internal quotation marks omitted]). “[I]nterstitial and
interpret[ive] gloss by the courts or by the other [b]ranches themselves that substantially
alters the specified law-making regimen” is prohibited (id.).
Courts therefore “do not have the leeway to construe their way around a self-evident
constitutional provision by validating an inconsistent practice and usage of those charged
with implementing the laws” (id. [internal quotation marks omitted]). Instead, “[t]he words
of the Constitution, like those of any other law, must receive a reasonable interpretation,
considering the purpose and the object in view” (Association for Protection of Adirondacks
v MacDonald, 253 NY 234, 238 [1930]). This involves analyzing “the provision in which
the questioned phrase appears,” the “circumstances and practices which existed at the time
of the passage of the constitutional provision,” and “the conduct of the [l]egislature as it
exercised its authority under” the amended provision (New York Pub. Interest Research
Group v Steingut, 40 NY2d 250, 258 [1976]).
The Constitution provides that each member of the legislature “shall receive for his
or her services a like annual salary, to be fixed by law,” “an additional per diem allowance,
to be fixed by law,” and “any allowance which may be fixed by law for the particular and
additional services appertaining to or entailed by such office or special capacity” (NY
Const, art III, § 6). “Neither the salary of any member nor any other allowance so fixed
may be increased or diminished during, and with respect to, the term for which he or she
shall have been elected” (id.). It states that the “provisions of this section and laws enacted
in compliance therewith shall govern and be exclusively controlling, according to their
terms” (id.). It similarly provides that state officers in the executive branch “shall . . .
receive a compensation, to be fixed by law, which shall not be increased or diminished
during the term for which he or she shall have been elected or appointed” (id., art XIII, §
7).
Dictionaries from the time of the amendment regarding legislative salaries define
“fix” as “[t]o set or place definitely; establish; settle”; “[t]o render permanent; to give an
unvarying form to” (Webster’s Collegiate Dictionary 378 [1945]). The term “fixed”
clearly calls for an unchanging level of compensation. As such, the salaries were not
“fixed” by the Enabling Act, and neither defendants nor the plurality contend otherwise
(see plurality op at 3 n 2). Instead, defendants argue that the Committee’s recommendation
made the salaries “fixed by law.” The Constitution provides that “no law shall be enacted
except by bill” (NY Const, art III, § 13) and states that no bill shall be “passed or become
a law, except by the assent of a majority of the members elected to each branch of the
legislature” with the “ayes and nays entered on the journal” (id. § 14). “Every bill which
shall have passed the senate and assembly shall, before it becomes law, be presented to the
[G]overnor; if the [G]overnor approve, he or she shall sign it” (id., art IV, § 7).
Contemporary cases interpreting similar provisions in the Constitution reached
consistent conclusions. The year before the amendment to article XIII, § 7’s predecessor
was proposed, the General Term was faced with the interpretation of the phrase
“established by law” in the context of setting county judges’ salaries (see Healey v Dudley,
5 Lans 115 [Sup Ct, Gen Term, 4th Dept 1871]). That court opined that “[w]hen an act is
to be done according to law, or a thing is to be established by law, we all understand that
the law intended is a law passed by the legislature, and not by some inferior body acting
under powers conferred by the legislature, unless, from the nature of the case, the act of
the inferior body is obviously intended” (id. at 119).9 The court concluded that the
9 The concurrence again divorces the language of a case from its context to buttress its arguments (concurring op at 26-27). The phrase “unless the act of the inferior body is obviously intended” acknowledges basic principles of construction. Here, there is nothing in our constitutional history or text demonstrating that the Committee’s acts were “obviously intended.” Moreover, a statute that is “obviously intended” to allow a delegation cannot overcome a constitutional prohibition against delegation. - 24 - - 25 - No. 83
constitutional provision at issue evinced no intent to allow the “inferior body” (there, the
board of supervisors) to set county judges’ salaries. This Court cited Healey in 1917,
stating that a salary of a surrogate, required to be “established by law” (1894 NY Const,
art VI, § 15), “must be fixed by the legislature” (People ex rel. Noble v Mitchel, 220 NY
86, 90 [1917]; see also Brinckerhoff v Bostwick, 99 NY 185, 190-191 [1885] [“Such
expressions as ‘required by law,’ ‘regulated by law,’ ‘allowed by law,’ ‘made by law,’
‘limited by law,’ ‘as prescribed by law,’ ‘a law of the [s]tate,’ are of frequent occurrence
in the Codes and other legislative enactments; and they are always used as referring to
statutory provisions only”]).
Between the adoption of the phrase “fixed by law” in the two constitutional
provisions at issue, this Court considered language in the Constitution stating that “[w]hen
the duration of any office is not provided by this Constitution, it may be declared by law”
(1894 NY Const, art X, § 3 [emphasis added]). The New York City Civil Service
Commission promulgated regulations providing certain hurdles to removing an employee
that the Court concluded, as to the employee, violated statutory rules about removal for
cause, and further concluded that “in the case of public officers such duration of term and
permanence of tenure must proceed from the action of the legislature itself, for so the
Constitution ordains” (People ex rel. Percival v Cram, 164 NY 166, 170-171 [1900]). The
Court explained that “[t]he power cannot be delegated to the civil service commission (if
we assume that such was the statutory intent) nor the term of an office be prescribed by its
regulation” (id. at 171; see also Benton County Council of Benton County v State ex rel.
Sparks, 224 Ind 114, 125, 65 NE2d 116, 120 [1946] [“the term ‘fixed by law’ in its general
and ordinary sense does not include a salary fixed by an administrative board”]; Colbert v
Bond, 110 Tenn 370, 381-382, 75 SW 1061, 1063 [1903] [“The law ascertaining this
compensation must be enacted by the (l)egislature, the only lawmaking power. This
lawmaking power cannot be delegated to any other body”]; Dane v Smith, 54 Ala 47 [1875]
[“ ‘Established by law’ . . . means declared by legislative enactment. This can be done
only by the lawmaking power”]).
This interpretation is also in line with the purpose of both provisions. The
constitutional conventions and commissions have, over time, expressed uncertainty about
giving the legislature the power to set their own and state officers’ salaries. But in both
cases, ultimately, the fact that the legislature would be directly accountable to the people
provided adequate assurances that this power would not be abused. This history belies the
plurality’s one-dimensional view that the only aim of the 1948 amendment to article III, §
6 was to make the process more flexible. Instead, it was to make the process more flexible,
while maintaining accountability. Handing this power to a committee of unelected
individuals who are not directly accountable to public opinion frustrates this purpose by
removing the onus of the decision-making from the body over which the public exerts
influence through elections. Without a vote of both chambers on whether raises should be
implemented, the public has no one to hold responsible other than the government at large.
For better or for worse, the substantial political difficulties that have impeded statutory
raises were an anticipated consequence, rather than a flaw, of vesting that power with the
legislature.
In the 70 years after the amendment to article III, § 6, and the over 140 years after
the amendment to article XIII, § 7, the legislature has enacted legislators’, the
Comptroller’s, and the Attorney General’s salaries by statute passed by a majority of both
houses and signed by the Governor. To the extent that the legislature’s contemporaneous
understanding of their own powers factors into the analysis, their decades of uniformly
changing salaries by statute supports the text’s history and purpose.
Federal cases cited by the plurality interpreting the U.S. Constitution’s requirement
that legislative salaries be “ascertained by law” carry little weight (see US Const, art I, §
6). While Congress only has the powers given to it by the United States Constitution, the
state legislature’s power is plenary, “limited only by the national and state constitutions.
For this reason, a list of enumerated powers comparable to [the U.S. Constitution] does not
appear in [Article III]. On the contrary, later sections of this article contain specific
restrictions on the exercise of legislative power” (Galie & Bopst, The New York State
Constitution at 112). Thus, while federal constitutional provisions regarding legislative
powers must be read in the context of granting certain powers, those in the State
Constitution must be read in the context of restricting them. The plurality nonetheless cites
legislative history indicating that the 1947 amendment was passed to align the process for
setting legislative salaries in New York to the process used by the federal government.
From this, the plurality concludes that if Congress can do it, so can we (see plurality op at
23-24). Critically, though, the plurality fails to mention that in 1948 when the amendment
was enacted, no attempt had ever been made to set congressional salaries other than by
- 27 - - 28 - No. 83
statute. The plurality’s implication that the meaning of our own Constitution may be
changed by Congress’s subsequent actions is analytically suspect.
Moreover, even accepting the similarity of the two provisions, the federal cases the
plurality cites interpreting the U.S Constitution’s Ascertainment Clause carry little
persuasive authority (see Humphrey v Baker, 848 F2d 211 [DC Cir 1988]; Pressler v
Simon, 428 F Supp 302 [D DC 1976 three-judge panel]). First, Pressler interprets the word
“ascertain,” and appears to start with the premise that the “ascertainment” must be
accomplished by statute (428 F Supp at 305 [concluding that statute delegating power did
so “by law” and “it only remains to consider whether or not the verb ‘ascertain’ has such a
narrow and limiting effect that, as a matter of constitutional law, it was intended to prevent
the Congress from developing rational procedures of this type”]). Of course, there is no
dispute here as to the meaning of the term “fixed” and the plurality does not propose that
the Enabling Act somehow “fixed” compensation. Instead, the plurality’s argument
appears to be that the Committee’s recommendations are somehow “law” despite never
receiving a majority vote in either the Senate or Assembly nor being signed by the
Governor (plurality op at 3 n 2 [“the critical phrase . . . for purposes of this appeal is ‘by
law’ ”]). In any event, Pressler’s conclusion that “ascertainment” included directing
another body to follow rational procedures for fixing congressional compensation was
based on federal constitutional history, which did not reflect the skepticism for the
legislature’s role that has motivated the treatment of this issue in the State Constitution.
Our distinct constitutional history elucidates the interpretation of our own Constitution.
Though the District Court’s decision in Pressler was affirmed without opinion by
the U.S. Supreme Court, the basis for that affirmance is unclear, and may have rested on
plaintiff’s lack of standing (see 434 US 1028 [1978, Rehnquist, J., concurring] [“Our
‘unexplicated affirmance’ without opinion could rest as readily on our conclusion that
appellant lacked standing to litigate the merits of the question as it could on agreement with
the District Court’s resolution of the merits”]). Nonetheless, in Humphrey, the D.C. Circuit
held that the Supreme Court’s affirmance of Pressler was binding on its analysis and
merely adopted the District Court’s reasoning from that case, providing no additional
analysis (848 F2d at 215-216).10
The state cases on which the plurality relies fare no better (see plurality op at 23-
25). People ex rel. Morris v Edmonds dealt with whether judges could be paid additional
compensation beyond that prescribed by the legislature (15 Barb 529, 532-536 [Sup Ct
1853]). When we cited that case in Matter of Benvenga, we made clear that “Justices of
the Supreme Court are [s]tate officers whose compensation must be prescribed by the
[l]egislature, subject to the constitutional provision” requiring them to be “established by
law” (294 NY at 530). We narrowly described the rule from Edmonds, that “the
[l]egislature may confer limited authority to pay additional compensation to such justices”
(id.). Of course, the legislature here attempted to confer authority to determine the
legislators’ entire salaries, repealing those already “fixed by law” (see supra at 12-13). Far
10 The plurality’s replacement of the word “ascertained” with the word “fixed” in that case’s holding (plurality op at 23) does not change the immateriality of its analysis to the issue at hand.
- 29 - - 30 - No. 83
from “endors[ing]” the language the plurality quotes from Edmonds (plurality op at 24),
the Court in Matter of Benvenga only provided a general citation and did not adopt any
language from that case. The plurality simply does not cite a single case supporting its
conclusion that, in this context, the phrase “fixed by law” does not mean “fixed by statute.”
The text and history of the two provisions at issue confirm that to satisfy article III,
§ 6, and article XIII, § 7, the legislature must enact a statute providing for an unchanging
level of compensation. Thus, even if the delegation in the Enabling Act were otherwise
permissible, it would nonetheless be unconstitutional insofar as it allowed the salaries of
legislators, the Attorney General, and the Comptroller to be fixed other than by a duly
enacted statute.
Our Constitution’s mandates are clear. Only the legislature may pass and repeal
laws, and the legislature itself must fix the salaries of legislators and officers named in the
Constitution. The plurality’s tortured journey to a contrary result leads us far astray from
these settled principles. The legislature must follow the lawmaking process of
bicameralism and presentment to pass and repeal laws. Because the Enabling Act’s
supersession clause instead gives the Committee the power to perform this crucial step, I
would declare that provision of the Enabling Act unconstitutional.
- 30 - - 31 - No. 83
Order affirmed, with costs. Opinion by Acting Chief Judge Cannataro. Judges Rivera and Troutman concur. Judge Wilson concurs in result in an opinion. Judge Singas dissents in an opinion, in which Judge Garcia concurs.
Decided November 17, 2022
- 31 -
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Cite This Page — Counsel Stack
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