Supreme Court, Onondaga County, February 9, 2023

Gary J. Lavine, plaintiff pro se.

Hancock Estabrook, LLP (John L. Murad of counsel) for Andrea Stewart-Cousins, defendant.

Phillips Lytle LLP (Craig R. Bucki of counsel) for Kathy Hochul, defendant.

Lippes Mathias LLP (Karl J. Sleight of counsel) for Independent Review Committee, defendant.

Harris Beach, PLLC (Elliot A. Hallak of counsel) for Carl Heastie, defendant.

Mackenzie Hughes LLP (Stephen T. Helmer of counsel) for Robert Ortt and another, defendants.

Plaintiff commenced the instant action on September 22, 2022, by filing a verified complaint seeking (a) declaratory judgment that the provisions of Executive Law § 94 by which the Senate's advice and consent prerogatives are delegated to the Independent Review Committee are unconstitutional; (b) declaratory judgment that the Committee's application of Executive Law § 94 to the plaintiff violates provisions of article I, article III, and article V of the Constitution; and (c) preliminary and permanent injunctions seating the plaintiff and all other nominees rejected by the Committee as members of the Commission on Ethics and Lobbying in Government.

Section 94 of the Executive Law provides, in part, that the Commission on Ethics and Lobbying (hereinafter the Ethics Commission) is comprised of 11 appointees who are nominated by the various defendants and must be approved by the Independent Review Committee (hereinafter IRC) which is comprised of the deans of New York State's accredited law schools. It is the approval of the IRC to which plaintiff objects as an unlawful delegation of the legislature's constitutional powers of advice and consent to a panel of private citizens.

Presently before the court is an order to show cause filed by plaintiff on September 22, [*2]2022, as well as four cross-motions to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action brought by defendants Andrea Stewart-Cousins,{**78 Misc 3d at 746} Governor Hochul,^[FN1] IRC, and Speaker Heastie. Defendants Ortt and Barclay filed an attorney affirmation asserting they had no objection to the relief sought by plaintiff. By letter dated December 14, 2022, plaintiff withdrew his second cause of action asserting IRC's application of Executive Law § 94 was unconstitutional as applied. (NY St Cts Elec Filing [NYSCEF] Doc No. 70.) Oral argument was heard on December 22, 2022.

As a matter of judicial economy, the court will first address the defendants' motions to dismiss for plaintiff's failure to set forth a cause of action, pursuant to CPLR 3211 (a) (7).

"We note at the outset that, [u]pon a motion to dismiss for failure to state a cause of action, a court may reach the merits of a properly pleaded cause of action for a declaratory judgment where no questions of fact are presented [by the controversy] . . . Under such circumstances, the motion to dismiss . . . should be taken as a motion for a declaration in the defendant's favor and treated accordingly." (Kaplan v State of New York, 147 AD3d 1315, 1316 [4th Dept 2017] [internal quotation marks omitted], citing North Oyster Bay Baymen's Assn. v Town of Oyster Bay, 130 AD3d 885, 890 [2d Dept 2015].)

Presently there are two causes of action before the court. The first cause of action alleges that Executive Law § 94 is unconstitutional either as an improper usurping of the Senate's advice and consent power or as an improper delegation of legislative power (i.e. the nondelegation doctrine). Plaintiff additionally asserts a cause of action seeking preliminary and permanent injunctions.

Defendants move to dismiss primarily based upon the alleged failure of the plaintiff to state a cause of action. In support, defendants proffer legal authority which demonstrates that (1) article V, § 4 of the New York Constitution requires Senate "advice and consent" only for appointments of executive branch department heads and appointments to the judiciary, not for appointments to subsidiary commissions; and (2) the nondelegation doctrine does not apply to delegations of power to approve or deny nominees to a body such as the Ethics Commission.

The court must start its inquiry with the presumption that Executive Law § 94 is constitutional. "[T]here exists a strong {**78 Misc 3d at 747}presumption of constitutionality which accompanies legislative actions . . . [which is] not to say . . . that such actions must always be sustained without question . . . ; they are, however[,] entitled to the benefit of the presumption, and will be sustained absent a clear showing of unconstitutionality." (Kaplan v State, 147 AD3d at 1317, quoting Wein v Beame, 43 NY2d 326, 331 [1977]; see Dunlea v Anderson, 66 NY2d 265, 267 [1985] [as a matter of substantive law every legislative enactment is deemed constitutional until proof to the contrary is adduced].) In fact, courts should only "strike them down" as a "last unavoidable result after every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible." (White v Cuomo, 38 NY3d 209, 216 [2022] [internal quotation marks and citations omitted].)

Executive Law § 94 establishes a two-step process for appointment to the Ethics Commission, whereby nominations are made by the governor, speaker of the assembly, temporary president of the senate, minority leaders of the assembly and senate, comptroller, and the attorney general. Those nominations are then subject to approval or denial by the IRC, [*3]which is composed of members of "the American Bar Association accredited New York state law school deans[,] interim deans, or their designee who is an associate dean." (Executive Law § 94 [2] [c]; [3] [a]-[b].) Nominees are appointed if they are found by the IRC to meet the qualifications necessary by virtue of their background and expertise, and are found to have the ability to impartially, fairly, and even-handedly serve on the commission. (Id. § 94 [3] [d].) If a nominee is rejected, the nominator submits a new nominee. In performance of its duties, the IRC is required to publish the procedure it will utilize on its website, which it did in June of 2022. The process provided for a questionnaire, interview, financial disclosures, fingerprinting, and releases to permit review of a nominee's criminal, tax, and credit history. It additionally provided a seven-day public comment period.

Plaintiff argues that Executive Law § 94 is facially unconstitutional as it violates the New York State Constitution's "advice and consent" provisions, or in the alternative, is an improper delegation of legislative power. Defendants' motion asserts that plaintiff's arguments are contrary to long-standing, binding Court of Appeals precedent.

The "advice and consent" power of the Senate applies in only two circumstances: (1) the appointment of heads of departments{**78 Misc 3d at 748} of the executive branch, and (2) the appointment of the judiciary. (See NY Const, art V, § 4; Soares v State of New York, 68 Misc 3d 249, 272 [Sup Ct, Albany County 2020] [advice and consent provision applies to "commissions or boards that serve as heads of departments in the executive branch, but not to every other 'subsidiary board or commission within the twenty permanent departments' "].) In fact, article IX, former § 9 of the New York Constitution provided in pertinent part that "[a]ll other officers whose . . . appointment is not provided for [in] this constitution . . . shall be . . . appointed, as the legislature may direct." (See also Lanza v Wagner, 11 NY2d 317, 330 [1962].) An appointment to the Ethics Commission is neither an appointment to a head of a department of the executive branch, nor an appointment to the judiciary and therefore entirely within the discretion of the legislature to direct as it sees fit. Plaintiff's argument that the appointment process for the Ethics Commission violates the "advice and consent" power of the Senate is without merit, and not grounds upon which to find a constitutional violation.

While plaintiff concedes that not all appointments require Senate confirmation, he conclusively asserts that the IRC approval process for nominees "fundamentally subverts the Senate's authority and demeans the Senate's stature in violation of" articles III and V of the Constitution. Article III, § 1 provides that the "legislative power of this state shall be vested in the senate and assembly" and is the origin of the "nondelegation doctrine." Typically, nondelegation cases involve a legislative delegation of law-making powers to an administrative agency. Plaintiff attempts to apply the nondelegation doctrine to the case at bar, arguing that it is impermissible for the legislature to delegate the power to confirm Commission nominees arguing that such confirmation is a nondelegable legislative act.

Contrary to plaintiff's position, the Court of Appeals has held that "the exercise of the power of appointment to public office is not a function of such essentially legislative character as to fall afoul of the constitutional proscription." (Lanza v Wagner, 11 NY2d 317, 333 [1962].) Further, where the Constitution does not specifically prescribe the manner in which officers were to be selected, "the Constitution itself grants to the Legislature the power to prescribe the method" by which appointments may be conducted. (11 NY2d at 330.)

Plaintiff misconstrues Lanza, arguing that the Court's holding only applied to the power of nomination, not the power of{**78 Misc 3d at 749} appointment. In essence, plaintiff argues that while the Court [*4]upheld the delegation to a group of private citizens the power to nominate members who would then be chosen by an elected office, it did not extend to allowing a "cohort of private citizens" to make the ultimate selection of members. In marked contrast however, the Court of Appeals made no such distinction. Instead, the Court reaffirmed the holding in Sturgis v Spofford (45 NY 446 [1871]), stating

"[t]he statute upheld in the Sturgis case, instead of providing for a selection or nominating board, actually vested the very power of appointment in specified private organizations . . . reject[ing] the contention that 'the power of appointment can only be conferred [by the Legislature] upon somebody or officer representing or responsible to the people.' " (Lanza, 11 NY2d at 329; see Sturgis v Spofford, 45 NY 446 [1871].)

Much like the plaintiff's present argument, the plaintiffs in Sturgis argued that "the power of appointment can only be conferred upon somebody or officer representing or responsible to the people." (Sturgis, 45 NY at 450.) The Court of Appeals rejected that argument, holding, "[t]he language of the Constitution does not justify this position. The power is not restricted." (Id.)

"While it is axiomatic that a court must assume the truth of the complaint's allegations, such an assumption must fail where there are conclusory allegations lacking factual support." (Dominski v Frank Williams & Son, LLC, 46 AD3d 1443, 1444 [4th Dept 2007].) Plaintiff's arguments are conclusory, unsupported,^[FN2] and self-contradictory. As plaintiff has failed to establish any question of fact with respect to the underlying controversy, defendants are entitled to declaratory judgment in their favor. (Kaplan v State of New York, 147 AD3d 1315, 1316 [4th Dept 2017].)

Finally, with respect to plaintiff's cause of action seeking "injunctive relief to seat all appointees rejected by the [IRC]," plaintiff has failed to establish his entitlement to such relief. "It is well settled that [p]reliminary injunctive relief is a drastic remedy [that] is not routinely granted." (Eastview Mall, LLC v Grace Holmes, Inc., 182 AD3d 1057, 1058 [4th Dept 2020]{**78 Misc 3d at 750} [internal quotation marks omitted].) In order to grant such relief, the moving party must show a probability of success, danger of irreparable harm without injunctive relief, and that the balance of equities is in his favor. (See Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 [1990].) If any one of these requirements is not satisfied, injunctive relief must be denied. (Faberge Intl. v Di Pino, 109 AD2d 235 [1st Dept 1985].) Here, all three elements are lacking. There is no probability of success on the merits, given the court's decision supra. Further, plaintiff's conclusory allegations that he will suffer irreparable harm are insufficient to grant injunctive relief. (See White v F.F. Thompson Health Sys., Inc., 75 AD3d 1076, 1076 [4th Dept 2010]; Sutton, DeLeeuw, Clark & Darcy v Beck, 155 AD2d 962, 963 [4th Dept 1989].) Likewise, plaintiff's allegations with respect to the balancing of equities are conclusory and contrary to the findings of the court, i.e. granting declaratory judgment to the defendants.

Accordingly, it is hereby ordered, adjudged, and decreed that defendants are granted judgment declaring that Executive Law § 94 is constitutional and that it was proper for the Independent Review Committee to reject or approve nominees in accordance with the provisions of Executive Law § 94; and it is further ordered, adjudged, and decreed that plaintiff's cause of action seeking preliminary and/or permanent injunctive relief is dismissed.