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SCHULZ v. NEW YORK STATE EXEC.

April 12, 1997

ROBERT L. SCHULZ and JOHN SALVADOR, JR., Plaintiffs, against THE NEW YORK STATE EXECUTIVE, GEORGE PATAKI, GOVERNOR; MICHAEL FINNEGAN, Chief Counsel to the Governor, and GARY SHEFFER, Spokesman for the Governor; THE NEW YORK STATE LEGISLATURE, SHELDON SILVER, Speaker of the Assembly, and JOSEPH BRUNO, Majority Leader of the Senate; THE NEW YORK STATE UNIFIED COURT SYSTEM, JUDITH KAYE, Chief Judge; THE NEW YORK STATE BOARD OF ELECTIONS, CAROL BERMAN, Chairman, THOMAS WILKEY, Executive Director; and THE NEW YORK STATE BOARD OF CANVASSERS, CAROL BERMAN, Chairman, Defendants.


The opinion of the court was delivered by: MCAVOY

 The present dispute concerns no less than twelve causes of action challenging, inter alia, the constitutionality of New York's Clean Water/Clean Air Bond Act; New York's Farm Preservation Act; section 123-b of New York's Finance Law; New York's procedure for choosing delegates to its constitutional conventions; and a number of the New York State Legislature's "Member Items." Defendants include the Governor of New York, the Governor's advisors, the New York State Legislature, key legislators, the New York Unified Court System, and the New York State Board of Elections. Plaintiffs Robert Schulz and John Salvador, although appearing pro se, are frequent litigators in federal and state court.

 Not content to fight this battle on merely one front, Plaintiffs hurried to federal court on October 13, 1996, seeking (1) a declaration that certain actions by the defendants violated the New York State and the United States Constitutions, and (2) for a temporary restraining order or preliminary injunction enjoining the New York Legislature and Executive from implementing Chapters 412 and 413 of the Laws of 1996 (the "Clean Water/Clean Air Bond Act" hereinafter "Environmental Bond Act").

 On October 17, 1996, this Court denied Plaintiffs' application for temporary relief and denied Plaintiffs' attempt to have their motion heard on an expedited basis. See Memorandum-Decision & Order dated October 18, 1996. On October 23, 1996, while the present matter was pending before this Court, Plaintiffs requested for the second time, and were denied, a Temporary Restraining Order in their state court action. Finally, on November 1, 1996, Justice Harris dismissed Plaintiffs' state action in its entirety. See Schulz v. New York State Executive, Index No. 6353-96 (Alb. Cty. Sup. Ct. 1996).

 A. The Claims

 Although Plaintiffs are concerned with their government's profligate spending, they appear to be less concerned with, or simply incognizant of, the costs associated with their litigating these issues before nine federal and state court judges.

 Plaintiffs' Complaint contains both federal and state law causes of action. Although the Complaint is a model of obfuscation, it appears that Plaintiffs are attempting to implicate four provisions in the United States Constitution: the Constitution's guarantee of a "Republican Form of Government," see Article IV section 4; the "privileges and immunities" clause of the Fourteenth Amendment; the "equal protection" clause of the Fourteenth Amendment; and the First Amendment.

 The gravamen of Plaintiffs' state law claims is that the Environmental Bond Act violates the New York State Constitution because the debt it authorizes is not for a "single work or purpose," and its purposes are not "distinctly specified therein." N.Y. CONST. art. VII, § 11. Plaintiffs also assert that defendants Pataki, Finnegan, and Sheffer violated the New York State Constitution by using public funds and public credit to "exhort the electorate to vote 'yes' on the Bond Act." (Pltfs' Mem. of Law at 44.)

 Presently before the Court are Defendants' Motions to Dismiss.

 II. DISCUSSION

 Initially, it is appropriate to identify certain basic principles that limit the power of every federal court. Unlike their state counterparts, federal courts are not courts of general jurisdiction; "they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Bender v. Williamsport Area School Dist., 475 U.S. 534, 540, 106 S. Ct. 1326, 1331, 89 L. Ed. 2d 501 (1986); see also Marbury v. Madison, 5 U.S. 137, 173-180, 2 L. Ed. 60 (1803). For example, prior to 1875, see Act of March 3, 1875, c. 137, 18 Stat. 470, federal courts did not even have original jurisdiction over actions that arose under the Constitution or laws of the United States. See, e.g., Hague v. Committee for Indus. Organization, 307 U.S. 496, 507, 59 S. Ct. 954, 960, 83 L. Ed. 1423 (1939). As Chief Justice Ellsworth succinctly noted in 1799:

 Turner v. Bank of North America, 4 U.S. 8, 8 1 L. Ed. 718 (1799).

 Although there is no consensus as to the framers' intent in creating federal courts of limited jurisdiction, early cases point to a fear of an all powerful federal sovereign. See, e.g., Turner v. Bank of North America, 4 U.S. 8, 8, 1 L. Ed. 718 (1799) ("Congress knew that the English courts have amplified their jurisdiction through the medium of legal fictions; and it was readily foreseen, that by the means of a colorable assignment to an alien, or to the citizen of another state, every controversy arising upon negotiable paper might be drawn into the federal courts."). Indeed, federalism concerns are plainly implicated in more recent cases as well. In Healy v. Ratta, 292 U.S. 263, 54 S. Ct. 700, 78 L. Ed. 1248 (1934), the Supreme Court stated:

 
The power reserved to the states, under the Constitution, to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the judiciary sections of the Constitution. Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which (a federal) statute has defined.

 Healy, 292 U.S. at 270, 54 S. Ct. at 703 (citations omitted); see also Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 379-380, 408, 79 S. Ct. 468, 483-484, 498-499, 3 L. Ed. 2d 368 (1959) (Brennan, J., dissenting and concurring).

 Consequently, subject-matter jurisdiction is both an Article III as well as a statutory requirement. Certain legal consequences necessarily follow from this observation. For example, no action of the parties can confer subject-matter jurisdiction upon a federal court. Thus, the consent of the parties is irrelevant, see California v. LaRue, 409 U.S. 109, 93 S. Ct. 390, 34 L. Ed. 2d 342 (1972), principles of estoppel do not apply, see American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18, 71 S. Ct. 534, 541-542, 95 L. Ed. 702 (1951), and a party does not waive the defense by failing to challenge jurisdiction early in the proceedings. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S. Ct. 2099, 2104, 72 L. Ed. 2d 492 (1982); Turner, 4 U.S. at 8 ("Silence, inadvertence of consent cannot give jurisdiction, where the law denies it."). Similarly, a court, including an appellate court, must raise lack of subject-matter jurisdiction on its own motion. "The rule, springing from the nature and limits of the judicial power of the United States is inflexible and without exception, which requires this court, of its own motion, to deny its jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record." Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382, 4 S. Ct. 510, 511, 28 L. Ed. 462 (1884).

 Accordingly, a federal district court cannot adjudicate every allegation of injustice, no matter how emphatically a party may argue to the contrary. Moreover, absent a viable basis of federal jurisdiction, a federal court is precluded from entertaining purely state law causes of action. Although under 28 U.S.C. § 1367(a) district courts have "supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution," a district court cannot exercise supplemental jurisdiction unless there is first a proper basis for original federal jurisdiction. See, e.g., In re Joint Eastern and Southern Dist. Asbestos Litig., 14 F.3d 726, 730 n.2 (2d Cir. 1993) ("the court may not exercise supplemental jurisdiction over claims unless the court has 'original jurisdiction' over at least one of the plaintiff's claims"); Cushing v. Moore, 970 F.2d 1103, 1106 (2d Cir. 1992).

 Here, Defendants assert that this Court lacks subject matter jurisdiction to entertain Plaintiffs' claims and that in the alternative, Plaintiffs' claims should be dismissed because they are without merit. "While distinguishing between a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) and a dismissal for failure to state a claim under Rule 12(b)(6) appears straightforward in theory, it is often much more difficult in practice." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).

 Not surprisingly, jurists have long struggled with the difficulty of distinguishing, in federal question cases, between dismissal for lack of subject matter jurisdiction and dismissal on the merits. Justice Holmes described the differences in a federal question case in The Fair v. Kohler Die and Specialty Co., 228 U.S. 22, 33 S. Ct. 410, 57 L. Ed. 716 (1913):

 
If it should appear that the plaintiff was not really relying upon [a federal statute] for his alleged rights, or if the claim of right were frivolous, the case might be dismissed. In the former instance the suit would not really and substantially involve a controversy within the jurisdiction of the court, and in the latter the jurisdiction would not be denied, except possibly in form.

 228 U.S. at 25, 33 S. Ct. at 411-12 (citations omitted).

 Distinguishing the basis of dismissal is particularly difficult in cases involving federal question jurisdiction under 28 U.S.C. § 1331, where the very statute that creates the cause of action often confers jurisdiction as well. Justice Black framed the analysis as follows:

 
If the court [exercises] its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction. The previously carved out exceptions are that a suit may sometimes be dismissed for want of jurisdiction where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.

 Bell v. Hood, 327 U.S. 678, 682-83, 66 S. Ct. 773, 776, 90 L. Ed. 939 (1946) (citations and footnote omitted).

 Although the federal courts have followed a general practice of granting jurisdiction in most cases and dismissing for lack of subject matter jurisdiction only under narrow circumstances, see Spencer v. Casavilla, 903 F.2d 171, 173 (2d Cir. 1990); Goldman v. Gallant Sec., Inc., 878 F.2d 71, 73 (2d Cir. 1989) (per curiam); Lewis v. Knutson, 699 F.2d 230, 237 (5th Cir. 1983), a court must nevertheless dismiss for lack of subject matter jurisdiction--even if a federal claim is asserted on the face of the complaint--where the federal question "is so plainly insubstantial as to be devoid of any merits and thus [does] not present[] any issue worthy of adjudication." Giulini v. Blessing, 654 F.2d 189, 192 (2d Cir. 1981); see also Nowak, 81 F.3d at 1188; Town of West Hartford v. Operation Rescue, 915 F.2d 92, 100 (2d Cir. 1990).

 As the Second Circuit has stated, the test "is whether the federal . . . claim was so insubstantial, implausible, or otherwise completely devoid of merit as not to involve a federal controversy." IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir. 1993); see also AVC Nederland B.V. v. Atrium Inv. Partnership, 740 F.2d 148, 152-53 (2d Cir. 1984) ("when the contested basis of federal jurisdiction is also an element of plaintiff's asserted federal claim, the claim should not be dismissed for want of jurisdiction except when it appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous") (internal quotation marks omitted).

 Accordingly, the Court will initially focus on Plaintiffs' federal claims, and with the foregoing standard in mind, will address ...


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