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INDEX NO.

E169547/2019
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STAIEOFNEWYORK
SUPREMECOURT : COUNTYOFNIAGARA

LINDA HITRLEY and REV. REX STEWART' Duly


Registered Voters itr the State of New York; DAYID
BUCIIWALD, ROBERT CARROLL, HARVEY EPSTEIN'
ROBERT JACKSON,WALTERMOSLEY' end PI L
STECtr! Individually and as Qualified Candidate for Public
Oflice Under the Laws of the State of New Yorb ANITA
TIIAYER and JONATIIAN WESTIN, Individually and as
Co.Chairt of the New York State Committee of the Working
Families Party and Members of the Executive Board of the
New York State Committee of the Working Femilies Party;
TIIE NEW YORK STATE COM1VIITTEE OT TIIE
WORKING FAMILMS PARTY; ANd TEE EXECUTIVE
BOARD OF TEE NEW YORK STATE COMMITTEE OF
THE WORKING FAMILIES PARTY
Plaintiffs,

vs. Index No. E169547/2019

THE PUBLIC CAMPAIGN FINAIICING AND ELECTION


COMMISSION; MYLAIY DEI\IERSTEIN, JAY JACOBS'
DeNORA GETACHEW' JOHN NOI{NA, ROSAIINA
VARGAS, CRYSTAL RODRIGTIEZ' IIENRY BERGER'
DAVID PREVITE, end KIMBERLY GALYIN' as
Commissioners of the Public Campaign Financing and
Election Commission; TIIE STATE OF NEW YORK; TEE
BOARD OF ELECTIONS OF TEE STATE OF NEW YORK;
PETER S. KOSINSKI, DOUGLAS A. KELLNE& ANDREW
J. SPAI\O, ATID GREGORY P. PETERSON, AS
Commissioners of the Board of Etections of the State of New
York; TI{E GOVERNOR OF THE STATE OF NEW YORK;
TI{E ASSEMBLY OF TIIE STATE OF NEW YORK; TI{E
SPEAKER OF THE, ASSEMBLY; TIIE MINORITY
LEADER OF THE ASSEMBLY; TIIE SENATE OF THE
STATE OF NEW YORK; Tffi M{IORITY LEADER OF
TIIE SENATE; ANd TEE MINORITY LEADER OF TIIE
SENATE

Defendants.

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Richard L. BrodskY, Esq'


Attomey for the Plaintiffs
2121 Saw Mill River Road
White Plains, New York 10607

Craig R. Bucki, Esq.


Kenneth A. Manning, Esq.
Samuel S. Borbor-SawYer, Esq.
Phillips Lytle, LLP
Attomeys for Defendants The Assembly of the State of New York
and the Speaker of the Assembly of the State of New York
Hon. Carl E. Heastie
One Canalside
125 Main Sheet
Buffalo, New York 14203

Eric J. Hecker, Esq.


John R. Cuti, Esq.
Cuti Hecker Wang, LLP
Attomeys for Defendants The New York State Senate and the
3enate Majority Leader Hon. Andrea Stewart-Cousins
305 Broadway, Suite 607
NewYork,NewYork 10007

James M. McGuire, Esq.


Daniel M. Horowitz, Esq.
Holwell Schuster & Goldberg, LLP
Attomey for Defendants The Public Campaign Financing and
Election Commission and Mylan Denerstein, Jay Jacobs,
Denora Getachew, John Nonn4 Rosanna Vargas,
Crystal Rodriguez, Henry Berger as Commissioners of
the public Campagn financing and Election Commission of
the State of New York
425 Lexington Ave., 146 floor
New York, New York 10017

Hon. Letitia James


Attomey General of the State of New York
by: Chris Liberati-Conant, Esq.
Assistant AttomeY General
Attomeys for Defendant The State of New York
The Capitol
Albany, New Yorkl2224

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Brittany L. PenberthY, Esq.


Vandette PenberthY, LLP
Attomeys for Defendants Douglas A. Kellner and Andrev J' Spano as
bommissioners of the Board of Elections of the State ofNew York
227 Niagara Street
Buffalo, New York 14201

Michael Y. Hawrylchalq Esq.


Comelius D. MurraY, Esq.
O'Connell & Aronowitz
Attomeys for Defendants Kimberly Galvin as Commissioner of the
iublic Campaign Financing and Election Commission of
the State of New York and Assembly Minority kader
Hon. William A. Barclay (replacing Brian Kolb)
54 State Street
Albany, New Yorkl2207

Jeftey T. BuleY, Esq.


Brown Weinraub
Attomeys for Defendants David Previte as Commissioner of the
iublic Campaigr Financing and Election Commission of
the State of New York and Senate Minority Leader
Hon. John J' Flanagan
50 State Steet, Fourft Floor
Albany, New York 12207

James P. Domagalski, Esq.


Barclay Damon, LLP
Peterson as
Attomlys for Defendants Peter S. Kosinski and Gregory P'
bommissioners of the Board of Elections of the State of New York
The Avant Building
200 Delaware Avenue
Buffalo, New York 14202

Cameron J. Macdonald, Esq.


Govemment Justice Center
Amicus Curiae
30 S. Pearl Sheet, Suite 1210
Albany,NewYork 12054

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DECISION & ORDER


Boniello, III' J.
ByNoticeofMotiorr'DefendantsTheAssemblyoftheStateofNewYork;theSpeaker
New York State senate' the
of the Assembly of the State ofNew York Hon. carl E. Heastie; The

Sorate Majority Leader Hon. Andrea stewart-cousins; The Public


campaign Financing and

Nonna, Rosanna
Election commissioq Mylan Denerstein, Jay Jacobs, Denora Getachew, John
Financing
vargas, crystal Rodriguez, Henry Berger as commissioners of the Public campaigr

and Etection commissiory The State ofNew York; and Douglas A. Kellner and Andrew J' Spano

and
as commissioners of the Board of Elections of the state of New York (hereinafter
..Moving Defendants ') moved to dismiss the Plaintiffs' Complaint pursuant to
collectively, the

various provisions ofCPLR $ 321 I . In response, Defendants David


Previte and Kimberly Galvin

Assembly
as commissioners of the Public carnpaign Financing and Election commission,

Minority Leader
Minority Leader Hon. William A. Barclay (replacing Brian Kolb) and Senate
have cross-
Hon. John J. Flanagan (hereinafter and collectively, the "Minority Defendants")

and joined in by
moved for Summary Judgrnent on their cross-claims which was adopted

of the Board of
Defendants Peter S. Kosinski and Gregory P. Peterson as Commissioners

judgment, as a
Elections of the State of New York and Plaintiffs herein seeking a declaratory

matter of law, ttlat Part )oo( of the Laws of 2019, chapter 59 (hereinafter, the "statute") is

center,
unconstitutional in all respects. In addition, the court granted the Government Justice

December 10,
Inc.'s application for leave to participate in this pro ceeding as amicus curiae on

2019.

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Previously,thiscasewasoriginallyassignedtotheHon.RichardC.Kloch,Sr.Judge
order was issued'
Kloch held a preliminary conference on September 9, 2019 and a scheduling

Pursuant to the Scheduling Order, six (6) Defendants filed Answers. The Minority Defendants

and the Majority


filed Answers with cross claims. The Defendants, the New York State senate

the speaker of the


Leader of the senate and the Assembly of the State of New York and

pursuant to CPLR $
Assembly, in lieu of Answers to the complaint, filed Motions to Dismiss

3211. The case was reassigned to this Court on octob er |,2019. onNovember l2,20l9,atthe

request ofthe Plaintiffs and after notice to all parties was


given, the court converted the Motions

Further, the prior


to Dismiss to Motions for Summary Judgment pursuant to CPLR $ 3211(c).

additional papers to
Scheduling order was amended to give the parties an oppornmity to submit

papers in support of their


develop an appropriate record. The parties submitted additional
submit
position but no pleadings were amended by the Plaintiffs nor did the Moving Defendants

12,2019
verified Answers. The oral argument on the motions was rescheduled from November

to December 12,2019.

Initially, the court finds that The Public campaigr Financing and Election commission

to be sued and
of the state of New York (hereinafter, the "commission") lacks the capacity

therefore, must be dismissed from this suit (see, cmty. Bd. 7 v schalfer, 34
NY2d 148 [1994D'

as well
Further, the court finds that Kimberly Glavin and David Previte from the commission

Peterson
as New york State Board of Election Commissioners Peter S. Kosinski and Gregory P.

lack capacity and standing to assert their cross-claims in this action (s ee, cmty. Bd. 7 t schaffer,

v Town
supra; Pooler v Public service Com.,41NY2d750llg77l; Matter ofstate univ. ofN.Y.

of Amherst,Sl AD3d 1476 [46 Dept 201 1]). Further, Assembly Minority Leader Hon. William

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failed to establish thal there was


A. Barclay and senate Minority trader Hon. John J. Flanagan
also lack standing to sue
nullification of their votes or usurpation of their power and thus, they

(see,Silverv.Pataki,96NY2d532l200ll:MatterofColtonvTownBd'ofTownofAmherst'12
a matter of law, the cross-
AD3d 163g [4o Dept 2010]). As result, the court must dismiss, as

York state Board of Election


claims asserted by the Minority Defendans (oined in by the New
the Plaintiffs).
commissioners Peter S. Kosinski and Gregory P. Peterson as well as

TherecordreflectsthatonAprill,20lg,theNewYorkStatet,egislatue(hereinafter'
..Legislature") approved a budget that included the passage ofthe Statute which established the

appointment of nine (9)


commission. Thereafter, on July 3, 2019, the Govemor announced the
by the Governor; two
commissioners. The commission consisted of two members appointed

Majoriu Leader; two members appointed by the Speaker ofthe


members appointed by the Senate

member appointed by the


Assembly; one mernber appointed by the Senate Minority Leader; one

Assembly Minority Leader; and the final appointment was


jointly made by the Governor' the

qualifications and afliliations of


senate Majority Leader and the Speaker ofthe Assembly. The

each of the members of the commission are set forth on


pages I and 2 of the commission's

report.

TheCommissionwastaskedwithmakingrecommendationswhichhavetheforceoflaw

and which would supersede existing law. The Statute empowered the commission to "examine,

evaluate and make recommendations for new laws with respect to how
the State should

statewide public
implement...a system of voluntary public financing for state legislature and

changes to
offices...". In addition, the commission was empowered to review and recommend

certain aspects of the State Election Law and tle state Public Finance Law. Such

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recommendations by the commission would become law unless


modified or abrogated by statute

on December
prior to Decemb er 22,2019 by lhelegislature. The commission issued its report

l,2olg arrd no part ofthe report was modified or abrogated by statute nor by any other legislative

force and effect of law'


action. Thus, the recommendations by the commission now have the full

interferes with the


The Plaintiffs assert that insofar as the Statute explicitly or effectively

the Plaintiffs
right to fusion voting the statute is unconstitutional. More broadly, however,
and the
further allege that both the New York State Constitution (hereinafter, "Constitution')

Laws ofthe State ofNew York (hereinafter, "State") do not


permit the creation ofany entity for

the purpose of making laws other than the Senate and the Assembly
nor can any entity other than

the Legislature modifi or repeal an enactment ofthe Legislature. As a result, the Plaintiffs have

a determination that
brought this declaratory judgment action against Defendants herein seeking

the actions ofDefendants are


the Statute enacted by the Legislature creating the Commission and

unconstitutional. Specifically, the Plaintiffs are seeking a


judgnent declaring that (l) the

and that insofar as the


Constitution and laws of the State guarantee the right of fi:sion voting,

interferes with that right


Statute or any action by the Commission which explicitly or effectively

any action abridging or


is unconstitutional and null and void and that no Defendant may take

(2) the constitution


interfering with the Plaintiffs' right to fusion voting (First cause of Action);
laws other
and laws ofthe State do not permit the creation ofany entity for the purpose of making

take any actions


than the Senate and Assembly, nor may such entity including the Commission,

and effect
which actually or effectively create law; nor will any such action be of legal force
permit the
(second cause of Action); and (3) the constitution and laws of the State do not

such
modification or repeal ofan enactment except by means equivalent to those used to create

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enactment (Third cause of Action). In response, the Moving Defendants argue that the

and that the


complaint is moot when viewed against the recommendations of the commission

Plaintiffs' claims have not been properly pled.

SummaryJudgmentis,ofcourse,adrasticremedywhichshouldnotbegrantedifthere

NY Prac $ 275, at 459-460 ed]). on a motion for


is a possible relevant factual issue (Siegel, [4'h

proof, in admissible
summary judgrnent, the proponent of the motion must set forth evidentiary

form, eliminating any material issue of fact from the swt (Alvarez v Prospect
Hospit4l'68 NY2d

into the constitutional


320 n9861). However, the court of Appeals has held that an inquiry

v Gould,l4 NY3d
validity of a statute is purely a questi on of law (Cayuga Indian Nation of N.Y.

614 [2010]).

genuine legal
It is well settled that in an action for declaratory judgrnent there must be a

will not be granted where it would result only in


dispute between the parties as declaratory relief

anadvisoryopinion(NeuYorkPublicInterestResearchGroup,Inc..vCarey,42NYzd52T

controversy,' there must be a real


[1977]). The law is clear that'1o constitute a Justiciable
for which a declaration of
dispute between adverse parties, involving substantial legal interests

1007 [2d Dept 2010])'


rights will have some practical effe ct' (Chanosv Madac, LLC,74 AD3d

Further,
..a justiciable controvercy is one solvable by a court rather than some other forum"

(schulzvsilver,zlz AD2d2g3 [3dDept 1995]). Howevex aparty must present a controversy

that is "definite and concrete" and be a "real and substantial controversy admitting of specific
Agents, Inc' v
relief through a decree ofa conclusive character" (New York State Asso. of Ins.

schenctq 44 AD2d 757 [46 Dept 1974f, quloting Aetna Lde Ins. co. v. Ha'north,300 us 227

notes that when evaluating whether ajusticiable controversy exists there


is
[1937]). The Court

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action which has


a distinction between an administrative action being reviewed and a legislative

the fuIl force of law. Moreover, ripeness pertains to an action


which is final and produces an

allegedharm(see,Churchofst.Paul&St'AndrewvBarwic't'67NY2d51011986);Matterof
Lexis 787 [4s Dept
Brighton Grassroots, LLC v Town of Brighton,2110 NY Appellate Division

2020D.

of the State and thus, each


Here, the recommendations ofthe commission are now the law

is final and binding. significantly, the commission's recommendations


recommendation

104 (3) by increasing the threshold for political parties to receive ballot
amended Election Law $I -

of the
access. The Plaintiffs have chatlenged the constitutionality of the Statute in the context

would be unconstitutional
Election Law. Specifically, the Plaintiffs have argued that such action

york State's Constitutional prohibition against delegating or granting legislative


and violate New

power to any entity or persons other than the senate and Assembly. The
Plaintiffs also claim that

this amendment will indirectly interfere with fusion voting as it


will eliminate minor parties from

the bauot. Based upon the facts and circumstances, the court
finds that there is a justiciable

controversy herein.

Theprimarylegalissueinthiscaseiswhetherthel,egislatureimproperlydelegateditslaw

power of this State shall


making powers to the Commission. It is firndamental that the legislative

be vested in the Senate and Assembly (see, NY Const., Art. Iil, $ |; Borealiv Axelrod,TlNY2d'

1t1987]).ThoughtheI'rgislaturecannotdelegateitsauthorityandpassonitslaw-making
that the Legislature
firnctions to other bodies or communities, New York Courts have recognized

may delegate certain matters to administrative agencies (Boreali v


Axelrod'-supra; Mooney v

Cohen,2I2NY 33 [936]; St. Joseph's Hosp. v Novello,43 AD 3d 139 [4'h Dept 2007])' In

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Boreali v Axelro4 the court of Appeals acknowledged that the kgislature


has considerable

leewayondelegatingitsregulatorypowers.Notwithstanding,theCourtofAppealsalsostated
is no broader than
that
..a
legislative gmnt ofauthority must be construed, whenever possible, so it

that which the separation of powers doctrine permis" 'Id'

empowered
In this case, the court finds that the Legislature, clearly and unequivocally,

line between
the commission to legislate new law and repeal existing statutes. The
(which cannot be
administrative rule-making (which can be delegated) and legislative action
and
delegated) has clerly been transgressed. The Legislature established the commission

delegated to it the authority to create new law and to repeal existing law which is a function

reserved solely to the Legislature under the constitution. The transgression became final when

the recommendations of the commission became law without


further action by the Legislature'

The Court notes that the fact that the kgislature reserved the right
to modifr or abrogate by

statute the recommendations ofthe commission does not validate the process. The legislative

constitution and adopted


function must be followed with proper procedure as mandated by the

the Legislature to pass the statute


and historically followed by the Legislature. The vote taken by

cannot be deemed to blindly ratiry the recommendations of the


Commission especially since such

passage ofthe Statute on April 1,2019'


recommendations would not be known at the time of the

requires that "to repeal or


The court fr[ther notes that the doctrine of legislative equivalency

modiff a statute requires a legislative act ofequat dignity and import. Nothing less than another

statute will sttffrce" (Moran v LaGuardia,270 NY 450 [1936])'

Accordingly,theMotionsforSummaryJudgrrrentDismissingtheComplaintbythe

a severability clause in the Statute, the Court


Moving Defendants are denied. Although there is

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finds that the Statute is an improper and unconstitutional delegation oflegislative authority to the

Commission. The Court awards summary judgment to the Plaintiffs (see, CPLR $ 3212 [b];

Estate of Gffine v Kavanagh,3}2 AD2d878 [4'r'Dept 2003D.

The sigfng of this Decision and Order shall not constitute notice of entry under CPLR

2220. Counsel is not relieved from the applicable provisions of this rule with regard to service

of notice of entry.

This Decision shall constitute the Order of this Court and shall be filed as such.

Supreme Court Justice

Dated: March 12,2020


Niagara Falls, New York

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