APPEAL by the defendants, as limited by their brief, in an action, inter alia, for a permanent injunction and a judgment declaring that the appointment, by the defendant David Paterson, of the defendant Richard Ravitch as lieutenant-governor is unconstitutional, from so much of an order of the Supreme Court (William R. LaMarca, J.), entered July 22, 2009, in Nassau County, as granted the plaintiffs' motion for a preliminary injunction enjoining the defendant Richard Ravitch from exercising any of the powers of the office of lieutenant-governor and denied their cross motion to dismiss the complaint.
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 Official Reports.
STEVEN W. FISHER, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, RANDALL T. ENG, JJ.
The principal issue presented on this appeal concerns whether the Governor has the authority, acting entirely on his own, to select and appoint an otherwise qualified individual to fill a vacancy in the office of the Lieutenant-Governor.
In November 2006, David Paterson was elected Lieutenant-Governor of the State of New York on a ticket with Eliot Spitzer, who was elected Governor. On March 17, 2008, Governor Spitzer resigned and, by operation of law, Lieutenant-Governor Paterson became Governor for the remainder of Governor Spitzer's term (see NY Const, art IV, § 5). Paterson's ascension to the office of Governor created a vacancy in the office of lieutenant-governor, and the parties agree that the office remained unfilled until July 8, 2009. On that date, responding to the State's severe financial crisis and a continuing political dispute that deadlocked the State Senate and brought the operation of the legislative branch to a virtual halt, Governor Paterson appointed Richard Ravitch to be Lieutenant-Governor. Mr. Ravitch accepted the appointment and delivered his oath of Office for filing to the First Deputy Secretary of State that night.
The next day, the plaintiffs, Dean G. Skelos, a State Senator elected from the 9th Senatorial District, and Pedro Espada, Jr., a State Senator elected from the 33rd Senatorial District (hereinafter together the Senators), commenced this action in the Supreme Court, Nassau County. The complaint named as defendants David Paterson as Governor, Lorraine Cortes-Vazquez as Secretary of State, and Richard Ravitch as "putative nominee" for lieutenant-governor. The Senators sought a judgment (1) declaring that the "acts" of Governor Paterson in appointing Mr. Ravitch were unconstitutional, and that the appointment itself was unconstitutional in all respects; (2) directing Ms. Cortes-Vazquez not to accept for filing any oath of office executed by Mr. Ravitch; and (3) enjoining the three defendants from taking any action to fill the office of lieutenant-governor. The Senators also moved for a preliminary injunction prohibiting Mr. Ravitch from exercising any of the powers of the office of lieutenant-governor, including presiding over the State Senate. The Governor, Ravitch, and Cortes-Vazquez jointly cross-moved to dismiss the complaint on the grounds that the matter was not justiciable, that the Senators lacked standing, and that a quo warrantor proceeding by the Attorney General was the only permissible way to challenge the appointment of Mr. Ravitch. In the alternative, the defendants also moved to change the venue of the action from Nassau County to Albany County. The Supreme Court granted the Senators' motion and preliminarily enjoined Mr. Ravitch from exercising any of the powers of the office of lieutenant-governor. The court also denied the defendants' cross motion to dismiss the complaint and their motion to change venue.
The Governor, Ravitch, and Cortes-Vazquez (hereinafter collectively the Governor) filed a notice of appeal and, by order to show cause, moved this Court for, among other things, a stay of enforcement of the Supreme Court's order pending the resolution of the appeal. By decision and order on motion dated July 30, 2009, this Court, inter alia, granted that branch of the motion which was for a stay to the extent of limiting the preliminary injunction so as to enjoin Mr. Ravitch only from presiding over, or exercising a casting vote in, the State Senate during the pendency of the appeal.*fn1
We turn first to the threshold and related questions of whether a challenge to the Ravitch appointment may be brought by way of an action for a declaratory judgment and injunctive relief, whether the Senators have standing to bring such an action, and whether CPLR 6311(1) presents a jurisdictional bar preventing the Supreme Court, Nassau County, from granting the requested relief.
The Governor contends that a quo warrantor proceeding, brought by the Attorney General, is the exclusive method by which the lawfulness of the Ravitch appointment may be challenged. The common-law writ of quo warrantor is now codified in Executive Law § 63-b (see Matter of Delgado v Sunderland, 97 NY2d 420, 424). That statute provides in pertinent part that "[t]he attorney-general may maintain an action, upon his own information or upon the complaint of a private person, against a person who usurps, intrudes into, or unlawfully holds or exercises within the state . . . a public office" (Executive Law § 63-b). Here, although the Attorney General issued a public statement on July 6, 2009, calling the Governor's proposed appointment of a lieutenant-governor "not constitutional" (Statement of Attorney-General Andrew Cuomo Regarding Lieutenant-Governor Appointment Proposal, http:// www.oag.state.ny.us/media_center/2009/july/july6a_09.html [Office of the Attorney-General, Jul. 6, 2009]), "there is nothing in the record to show that the Attorney-General has taken or intends to take an active role in the resolution of this dispute . . . [and] we believe that the public interest requires that we address the issues now rather than await a quo warrantor proceeding brought by the Attorney-General" (Matter of Dekdebrun v Hardt, 68 AD2d 241, 244, lv dismissed 48 NY2d 882; see Matter of Cullum v O'Mara, 43 AD2d 140, 145, affd 33 NY2d 357; cf. Matter of Delgado v Sunderland, 97 NY2d at 425). Moreover, it has long been recognized that a determination of the title to a public office may be made by way of "mandamus, prohibition and quo warrantor as the circumstances of the case and the mode of procedure may require" (People ex rel. Corscadden v Howe, 177 NY 499, 506; see Ex Parte Heath, 3 Hill 42). A quo warrantor proceeding is traditionally seen as the exclusive remedy where there are facts in dispute that must be tried (see Greene v Knox, 175 NY 432; Morris v Cahill, 96 AD2d 88, 90; Matter of Ahern v Board of Supervisors of County of Suffolk, 7 AD2d 538, 543-544, affd 6 NY2d 376). However, when only an issue of law is presented, entitlement to an office may be tested by mandamus in an article 78 proceeding (see Ellis v Eaton, 136 AD2d 890, 891; Matter of Dykeman v Symonds, 54 AD2d 159, 161; Matter of Cullum v O'Mara, 43 AD2d at 145). And, "so long as [a] declaratory judgment action is limited to resolving a question of law, it is an appropriate alternative to an article 78 proceeding and does not thwart the policies underlying the restriction of the remedy of quo warrantor to actions brought by the Attorney-General" (LaPolla v DeSalvatore, 112 AD2d 6, 8). Inasmuch as there are no disputed issues of fact to be tried here and the controversy turns entirely on the resolution of a question of law, we hold that the instant action for a declaratory judgment and injunctive relief is a permissible way to challenge the Ravitch appointment.
The Governor contends that, even if an action for a declaratory judgment and injunctive relief can be brought, the Senators are without standing to bring it. It has long been a core principle of our system that a court has no inherent power to right a wrong unless the rights of the party requesting relief are affected by the challenged action (see Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772; Schieffelin v Komfort, 212 NY 520, 530). Thus, a plaintiff must allege an injury in fact that falls within his or her zone of interest and, if suing in the capacity of a legislator, must demonstrate that injury by showing, for example, a nullification of his or her vote or a ...