Rudder v. Pataki

246 A.D.2d 183, 675 N.Y.S.2d 653, 1998 N.Y. App. Div. LEXIS 7989

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 1998
• Status: Published

Opinions

OPINION OF THE COURT

White, J.

On November 30, 1995, one month prior to the scheduled sunset of the regulatory review agency formerly known as the Office of Regulatory and Management Assistance, defendant Governor issued Executive Order No. 20 (9 NYCRR 5.20 [hereinafter the executive order]) which established the position of Director of Regulatory Reform (hereinafter the Director) with the authority to oversee the review of proposed agency regulations. The executive order set forth the responsibilities of the Director including, but not limited to, oversight of the regulatory process of State agencies, analysis of the impact of proposed and existing rules on matters such as public health, safety and welfare, and making recommendations for simplifying the regulatory process, including a cost-benefit analysis and analysis of a rule’s impact on the creation or retention of jobs. In addition, prior to an agency’s submission of proposed or revised rulemaking for publication in the State Register, the rule must be submitted to the Director for evaluation and approval. If the Director determines that the submission is complete, it is then submitted with the Director’s recommendation to a four-member committee

* which may then authorize publication, disapproval or revision of the rule if it does not meet the criteria set forth in 9 NYCRR 5.20.

This action arises from a constitutional challenge to the executive order following the disapproval by defendant Director of a Department of Health proposal to amend 10 NYCRR 405.28 (d). This rule requires each hospital in the State, excepting rural or non-urban hospitals, to have an organized social work department under the direction of a qualified medical social worker. The proposed amendment, inter alia, required that the director of the department of social work in each covered hospital have a Master’s degree in social work from an accepted educational program. After reviewing the proposed rule, the Director found that the amendment did not comply with the criteria set forth in the executive order and issued a notice of noncompliance to the Commissioner of Health. The Commissioner responded and a second notice of noncompliance was issued by the Director. Thereafter the Commissioner submitted no further information to refute the Director’s objections, the proposed rule expired on June 10, 1996 and a final determination was never made by the Director.

Plaintiffs commenced this declaratory judgment action seeking to have the executive order declared unconstitutional and, following joinder of issue, both parties moved for summary judgment. Supreme Court granted summary judgment in favor of defendants and dismissed the complaint. Plaintiffs now appeal.

The initial issue we must confront is whether plaintiffs have standing to maintain this action. This must be determined at the outset of any litigation since standing is a threshold determination and a litigant must establish standing in order to seek judicial review, with the burden of establishing standing being on the party seeking review (see, Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 769, 772). The party seeking relief must demonstrate that it will suffer direct harm or injury that is different in some way from that of the public at large (see, Matter of Lee v New York City Dept. of Hous. Preservation & Dev., 212 AD2d 453, 454, lv dismissed in part and denied in part 85 NY2d 1029; Matter of Hoston v New York State Dept. of Health, 203 AD2d 826, 827, lv denied 84 NY2d 803).

In Matter of Eaton Assocs. v Egan (142 AD2d 330), where an executive order promulgating an affirmative action program without legislative authorization was challenged as unconstitutional under the doctrine of separation of powers, this Court held that the petitioner lacked standing as there was no showing that it had suffered any personal injury fairly traceable to the executive order. Further, a party must show that the injury of which it complains falls within its zone of interest and is not a generalized grievance, and the fact that the issue may be one of wide public concern will not entitle a party to standing (see, Valley Forge Coll. v Americans United, 454 US 464, 475-476; Matter of Kirmayer v State of N. Y. Civ. Serv. Commn., 236 AD2d 705, 706, lv denied 89 NY2d 815; Matter of Otsego 2000 v Planning Bd., 171 AD2d 258, lv denied 79 NY2d 753).

Plaintiff Cynthia Rudder, the Director of the Nursing Home Community Coalition of New York State, claims standing as a citizen taxpayer pursuant to State Finance Law § 123-b. Under this section an action against an officer or employee of the State challenging the expenditures or appropriations of its funds may be maintained, but unless the expenditures can be clearly traced to identifiable State funds the plaintiff lacks standing to pursue such an action (see, Matter of Schulz v State of New York, 217 AD2d 393, 395; Matter of Schulz v Cobleskill-Richmondville Cent. School Dist. Bd. of Educ., 197 AD2d 247, 251). Other than general references to improper spending by defendant Office of Regulatory Reform, plaintiff has failed to designate with any specificity either the amount of funds to be expended or the manner in which the expenditure will occur. Therefore, she lacks standing under State Finance Law § 123-b.

The 10 organizational plaintiffs are a potpourri of agencies involving social workers, nursing home advocates and other advocates for the aged and disabled, as well as the Women’s City Club of New York and the League of Women Voters. Mindful that the present regulations provide that a qualified medical social worker would have to be replaced by a person holding a Master’s degree in social work, we find a lack of any specific harm to any of the plaintiff organizations other than generalized statements that continuing with the present rule would somehow diminish the care presently available or have a deleterious effect on patients. From a reading of plaintiffs’ brief, it is clear that the main contention of plaintiffs is that the executive order vests the Governor’s Office of Regulatory Reform with a “virtually limitless” veto power in the rulemaking process, a concern which is more appropriately addressed by the Legislature (see, Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 773, supra).

Since no final determination was made in the challenged proceeding and any anticipated harm to the plaintiffs is remote and highly speculative, we find that plaintiffs have failed to sustain their burden of establishing standing in this matter.

The committee consists of defendants Secretary to the Governor, Counsel to the Governor, Director of State Operations and the Director of the Division of the Budget.