The opinion of the court was delivered by: Lucy Billings, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
In this proceeding New York State taxpayers, including state legislators, once again seek the same ruling state taxpayers have sought and been denied in prior proceedings: that marriages validly entered outside New York State between partners of the same sex not be recognized in this state. Here, petitioner taxpayers challenge New York State Governor Paterson's Executive Directive dated May 14, 2008, and ask the court to declare that the Directive contravenes New York law and permanently enjoin the Directive's enforcement, because it exceeds the Governor's lawful authority. C.P.L.R. §§ 7803(2) and (3), 7806; NY State Fin. Law § 123-e.
Relying on Martinez v. County of Monroe, 50 AD3d 189 (4th Dep't 2008), leave to appeal denied, 10 NY3d 856 (2008), and consistent lower court decisions, the Directive instructs all executive agencies that:
[A]gencies that do not afford comity or full faith and credit to same-sex marriages that are legally performed in other jurisdictions could be subject to liability. In addition, extension of such recognition is consistent with State policy. . . . .
. . . [I]t is now timely to conduct a review of your agency's policy statements and regulations, and those statutes whose construction is vested in your agency, to ensure that terms such as "spouse," "husband" and "wife" are construed in a manner that encompasses legal same-sex marriages, unless some other provision of law would bar your ability to do so.
Ver. Petition, Ex. A (emphases added). Petitioners claim this Directive violates New York State Finance Law § 123-b and the separation of powers under the New York Constitution.
Respondent, Governor Paterson, moves to dismiss the amended petition. C.P.L.R. §§ 406, 409(b), 3211(a), 3212(b), 7804(d) and (f). Respondent-Intervenors, Peri Rainbow and Tamela Sloan, two women married in Canada, move to intervene as respondents to protect their interests in this proceeding, C.P.L.R. §§ 401, 406, 409(b), 1012, 1013, 7802(d), and likewise move to dismiss the amended petition. The court grants their motion to intervene without opposition. After oral argument, for the reasons explained below, the court also grants respondents' motions to dismiss the amended petition. The Governor's Directive is an incremental but important step toward equality long denied, even if, according to the New York Court of Appeals, full equality is not constitutionally mandated. Hernandez v. Robles, 7 NY3d 338, 356, 361, 366 (2006).
New York State Finance Law § 123-b(1) provides that:
[A] citizen taxpayer, whether or not such person may be affected or specially aggrieved by the activity herein referred to, may maintain an action for equitable or declaratory relief, or both, against an officer or employee of the state . . . about to cause a wrongful expenditure . . . of state funds . . . .
In three recent proceedings, other New York taxpayers have invoked State Finance Law § 123-b seeking an adjudication that New York law does not require, but instead bars recognition of same sex marriages legally performed in other jurisdictions. In each proceeding, the court decided that issue against the petitioner taxpayers. Lewis v. New York State Dep't of Civil Serv., 2008 NY Misc. LEXIS 1623 at *5-7 (Sup. Ct. Albany Co. Mar. 3, 2008); Godfrey v. Hevesi, 2007 NY Misc. LEXIS 6589 at *3, *6 (Sup. Ct. Albany Co. Sept. 5, 2007); Godfrey v. Spano, 15 Misc 3d 809, 810 (Sup. Ct. Albany Co. 2007). Respondents now maintain that under State Finance Law § 123-b, petitioners here must be considered in privity with the taxpayers in those prior actions and collaterally estopped from relitigating that issue. See David v. Biondo, 92 NY2d 318, 324 (1998); Juan C. v. Cortines, 89 NY2d 659, 667 (1995); Energy Assn. of NY State v. Public Serv. Commn. of State of NY, 273 AD2d 708, 710 (3d Dep't 2000); Landmark West! v. City of New York, 9 Misc 3d 563, 567 (Sup. Ct. NY Co. 2005).
Petitioners dispute not that they are in privity with those other taxpayers, but that the issue decided against them is the same issue petitioners present to the court here. Buechel v. Bain, 97 NY2d 295, 303-304 (2001); Juan C. v. Cortines, 89 NY2d at 667. This proceeding, however, does present the identical issue whether New York law bars, permits, or requires recognition of same sex marriages legally performed in other jurisdictions. Resolution of that issue is central to the May 2008 Directive's legality. Whether or not the prior decisions against other taxpayers on that issue now bars its relitigation in this proceeding, this court is in any event bound by the controlling authority on that issue. Martinez v. County of Monroe, 50 AD3d at 192. See Tzolis v. Wolff, 39 AD3d 138, 142 (1st Dep't 2007), aff'd, 10 NY3d 100 (2008); Nachbaur v. American Tr. Ins. Co., 300 AD2d 74, 76 (1st Dep't 2002).
Insisting once again that New York law bars recognition of same sex marriages performed in other jurisdictions, this proceeding challenges the Governor's Directive of May 14, 2008, on the same grounds as prior challenges to other state action. Insofar as this proceeding is the first, however, to challenge this Directive, which requires all state agencies to recognize same sex marriages for a full range of statutory and regulatory purposes, rather than the action of a single public entity or official for a limited purpose, this court concludes, for the reasons explained below, that the Directive is entirely lawful.
B. STANDING TO SEEK JUDICIAL REVIEW AND RIPENESS FOR REVIEW
Petitioners maintain that the Directive's implementation inevitably will cause the expenditure of state funds through same sex spouses' eligibility for insurance benefits, other benefits, and financial assistance to the needy, for which only one partner previously was eligible. The implementation of any state policy surely causes the expenditure of state resources, but standing under State Finance Law § 123-b does not accommodate challenges to non-fiscal activities with a fiscal by-product. Saratoga County of Commerce, Inc. v. Pataki, 100 NY2d 801, 813 (2003); Rudder v. Pataki, 93 NY2d 273, 281 (1999); Public Util. Law Project of NY v. New York State Pub. Serv. Commn., 263 AD2d 879, 881 (3d Dep't 1999); Gerdts v. State of NY, 210 AD2d 645, 647-48 (3d Dep't 1994). In determining whether petitioners' claims have a close enough nexus to state fiscal activities, the court must determine whether the challenge to expenditures is but a pretense for a challenge to a governmental decision. Saratoga County of Commerce, Inc. v. Pataki, 100 NY2d at 813; Rudder v. Pataki, 93 NY2d at 281; Transactive Corp. v. New York State Dept. of Social Servs., 92 NY2d 579, 589 (1998); Kennedy v. Novello, 299 AD2d 605, 607 (3d Dep't 2002). On the one hand, a claim, as petitioners maintain, that it is illegal to spend any funds at all for the challenged activity, may provide a close enough nexus to fiscal consequences. Saratoga County of Commerce, Inc. v. Pataki, 100 NY2d at 813-14. On the other hand, such a claim may readily reveal that the root of the challenge is the activity and the decision to carry it out, which inevitably have fiscal consequences.
Petitioners have provided few specifics to quell skepticism that their challenge falls in the former rather than the latter category, perhaps because, as yet, neither the immediate nor the ultimate and full ramifications of the Directive's implementation are ascertainable. Consequently, petitioners do not specify what identifiable funds will be spent, the size of the affected populations, or whether counting spouses' income and assets in determining eligibility for benefits, for example, will render both spouses ineligible and actually save state funds. Without tracing the Directive to specific disbursements of state funds, petitioners fail to demonstrate that linkage essential to standing under State Finance Law ...