42 N.Y.2d 527 (1977)

New York Public Interest Research Group, Inc., et al., Respondents, v. Hugh L. Carey, as Governor of the State of New York, Appellant.

Court of Appeals of the State of New York.

Decided November 2, 1977.

Attorney(s) appearing for the Case

Louis J. Lefkowitz, Attorney-General (Jean M. Coon and Ruth Kessler Toch of counsel), for appellant.

Dennis A. Kaufman, William J. Quirk and Leon E. Wein for respondents.

Judges GABRIELLI and COOKE concur with Judge WACHTLER; Judge FUCHSBERG concurs in a separate opinion; Judge JONES dissents and votes to affirm in an opinion in which Chief Judge BREITEL and Judge JASEN concur.


In this action a group of citizen taxpayers have asked the courts to declare chapter 455 of the Laws of 1977 unconstitutional. The chapter is not in effect and may never go into effect unless approved by the voters at the general election to be held on November 8, 1977. The action is an unusual one which raises a fundamental question concerning the proper role of the courts, that is, whether the courts should intervene in a pending election to determine whether a proposition, finally and irrevocably on the ballot, would be unconstitutional if the voters approve it.

We have concluded that under the State Constitution and applicable statutes it is neither necessary nor proper for the courts to express any view regarding the constitutionality of the proposed law on the eve of this election. Thus the determinations made by the courts below should be reversed and the complaint dismissed.

Chapter 455 of the Laws of 1977 authorizes, when effective, the creation of a State debt in the amount of $750,000,000. The State Constitution (art VII, § 11) provides, with exceptions not relevant here, that no debt shall be "contracted by or in behalf of the state, unless such debt shall be authorized by law, for some single work or purpose, to be distinctly specified therein. No such law shall take effect until it shall, at a general election, have been submitted to the people, and have received a majority of all the votes cast for and against it at such election".

The Legislature passed chapter 455 on June 27, 1977. Section 3 of the law provides that it shall be submitted to the voters as a proposition in the following form: "Shall chapter [455] of the laws of nineteen hundred seventy-seven, known as the economic action program bond act for New York state of nineteen hundred seventy-seven, authorizing the creation of a state debt in the amount of seven hundred fifty million dollars ($750,000,000) to provide moneys for the acquisition, construction, reconstruction, establishment, improvement or rehabilitation of public capital facilities for industrial and community development, tourism and recreation, conservation and environment and local transportation access, all in furtherance of economic development, be approved?" On July 19 the law was signed by the Governor. On August 8 the State Board of Elections certified the text of the proposition as it will appear on the ballot at the general election to be held on November 8.

More than a month after the Board of Elections certified the proposition for the ballot, the plaintiffs commenced this action claiming that the debt authorized by the law is not for a "single work or purpose" as is required by the State Constitution (art VII, § 11). The complaint seeks a judgment declaring the statute unconstitutional. In addition the plaintiffs sought (1) an injunction prohibiting the Governor from enforcing the law if approved by the voters, (2) a mandatory injunction directing the defendant May, Chairman of the State Board of Elections, to rescind the certification and remove the proposition from the ballot and (3) reimbursement for counsel fees.

The defendants moved for summary judgment dismissing the complaint. The plaintiffs cross-moved for summary judgment granting the relief requested. However on the return date of the motion the plaintiffs stipulated to discontinue the action against the Chairman of the Board of Elections and the request for a mandatory injunction removing the proposition from the ballot. Accordingly, this portion of the complaint was dismissed.

The trial court then granted plaintiffs' motion for summary judgment for the remainder of the relief requested. The proposed law was declared unconstitutional; the Governor was enjoined from enforcing it and the plaintiffs were awarded counsel fees.

The Appellate Division modified by denying plaintiffs' application for counsel fees, but otherwise affirmed. One Justice dissented and voted to dismiss the complaint on the ground that the case, in its present posture, called for an advisory opinion.

It is fundamental that the "function of the courts is to determine controversies between litigants * * * They do not give advisory opinions. The giving of such opinions is not the exercise of the judicial function" (Matter of State Ind. Comm., 224 N.Y. 13, 16 [CARDOZO, J.]). This is not merely a question of judicial prudence or restraint; it is a constitutional command defining the proper role of the courts under a common-law system (Matter of State Ind. Comm., supra).*

In a sense, of course, any decision a court may render is always advisory since it determines the legal rights and obligations of the parties. But the courts should not perform useless or futile acts and thus should not resolve disputed legal questions unless this would have an immediate practical effect on the conduct of the parties. The need for judicial intervention is obvious when, because of the actions of one of the parties, a dispute arises as to whether there has been a breach of duty or violation of the law. Then the courts can declare the rights and obligations of the parties, and if a breach is found, compel compliance, award damages or otherwise order appropriate action to be taken.

That is the traditional, but not the only way in which a genuine legal dispute may arise or be resolved by the courts. For instance, when a party contemplates taking certain action a genuine dispute may arise before any breach or violation has occurred and before there is any need or right to resort to coercive measures. In such a case all that may be required to insure compliance with the law is for the courts to declare the rights and obligations of the parties so that they may act accordingly. That is the theory of the declaratory judgment action authorized by CPLR 3001 (James v Alderton Dock Yards, 256 N.Y. 298; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3001, pp 355-357; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3001.02; Borchard, Declaratory Judgments, 9 Brooklyn L Rev, pp 1-3).

Whether a judicial determination of this nature will have this effect is generally for the court to decide in the exercise of sound discretion (CPLR 3001). There are however certain basic principles. The fact that the court may be required to determine the rights of the parties upon the happening of a future event does not mean that the declaratory judgment will be merely advisory. In the typical case where the future event is an act contemplated by one of the parties, it is assumed that the parties will act in accordance with the law and thus the court's determination will have the immediate and practical effect of influencing their conduct (Borchard, Declaratory Judgments, pp 25-28, 75-76).

But a request for a declaratory judgment is premature if the future event is beyond the control of the parties and may never occur (Prashker v United States Guar. Co., 1 N.Y.2d 584). Then any determination the court may make would be merely advisory since it can have no immediate effect and may never resolve anything (Borchard, Declaratory Judgments, pp 58-60). Thus it is settled that the "courts will not entertain a declaratory judgment action when any decree that the court might issue will become effective only upon the occurrence of a future event that may or may not come to pass" (3 Weinstein-Korn-Miller, op. cit., par 3001.09b). In accordance with this principle, we have held that the courts should not decide the constitutionality of a statute requiring mandatory arbitration in the event of a bargaining impasse, if there has been no impasse and no order to arbitrate (Park Ave. Clinical Hosp. v Kramer, 19 N.Y.2d 958; Mount St. Mary's Hosp. v Catherwood, 26 N.Y.2d 493, 499). The same principle applies when a party challenges a statute which has not become effective. "[U]ntil the statute or ordinance is passed", a declaratory judgment "would be premature" (Borchard, Declaratory Judgments, p 63; cf. Matter of McCabe v Voorhis, 243 N.Y. 401, 411-412). For instance here, if the voters do not approve the proposition all the determinations which the courts have made in this case would be merely of abstract interest and moot. In addition when final approval rests with the voters, "the hazardous and inconvenient nature of such action, taken in the necessary haste of disposing of pre-election contests, makes it wise and expedient for the courts to refuse to intervene in advance of some threatened action" (Matter of McCabe v Voorhis, supra, p 412).

That is not to say that the courts may never consider the validity of proposed legislation. This has been done on several occasions, although with reluctance and then only incidentally to resolve a dispute as to whether the proposition should be placed or remain on the ballot (see, e.g., Matter of McCabe v Voorhis, supra; Matter of Tierney v Cohen, 268 N.Y. 464; Matter of Osborn v Cohen, 272 N.Y. 55; Matter of Mooney v Cohen, 272 N.Y. 33; Johnson v Etkin, 279 N.Y. 1; Matter of Stroughton v Cohen, 281 N.Y. 343; Matter of Atwood v Cohen, 291 N.Y. 484).

These are not advisory opinions. The effect of the court's determination in those cases does not depend on the outcome of the election. On the contrary, those orders have the immediate and practical effect of determining whether the proposition should be submitted to the voters, or whether all the expense and human effort involved in the election process would be wasted because of fatal defects in the law.

That is not what the plaintiffs have asked the courts to do in this case. Indeed, as noted, they have specifically abandoned their original demand for a determination that the proposition be removed from the ballot and have discontinued the action against the Chairman of the Board of Elections. Thus the proposition will be submitted to the voters and the courts have simply been asked to determine whether the statute if adopted would be unconstitutional. This is the kind of advisory opinion the Judges of this State have been unable to give since the abolition of the Council of Revision in the early part of the 19th century. If is not, as Judge CARDOZO noted, the proper "exercise of the judicial function" (Matter of State Ind. Comm., 224 N.Y. 13, 16, supra) and thus at this point we express no views as to the constitutionality or unconstitutionality of the proposition. Judicial intervention or expression would be premature pending the outcome of the referendum.

Accordingly, the order of the Appellate Division insofar as appealed from should be reversed and the case remitted to Supreme Court, Albany County, to dismiss the complaint.

FUCHSBERG, J. (concurring).

Besides joining in Judge WACHTLER'S opinion because of the procedural limitations that he articulates, I believe it well that the attack on the proposed bond referendum not go unanswered. For, in my opinion, it is not to be assumed that it would not pass constitutional muster.

Section 11 of article VII of the State Constitution in its phrase "single work or purpose" employs verbiage which succeeded to the phrase "single work or object" in order to "remove any doubt that may exist as to the power of the state to contract a debt for a single objective that may relate to more than one physical structure or, indeed, as in the case of relief bonds, may not include a physical structure" (New York State Constitutional Convention of 1938, Proposed Amendments, vol II, No. 748, Int 665, p 19; emphasis supplied).

"Comprehensive and integrated economic" development, the stated purpose of chapter 455, appears to be well within the embrace of "purpose" as so defined. And nowhere is it suggested that the Constitution's use of the word "single" is to be equated with concepts of simplicity, narrowness or size.

In adopting chapter 455, the Legislature noted the "alarming decline [in the] once vigorous economy of the `Empire State'" to a point where the loss of 700,000 jobs had brought manufacturing employment to its lowest level since the depression of the thirties, State-wide employment had lagged behind the rest of the Nation by an aggregate of about 14% and the 21 major industrial groups within the manufacturing section had declined by more than 20% since 1970. Pointing also to a rapid deterioration of capital facilities vital to New York's commerce and industry to a state of imminent economic disaster for the State and its localities, it concluded that a problem of this magnitude could no longer be addressed in piecemeal fashion but only by means of a single economic action program. These legislative findings are not lightly to be disregarded (People ex rel. Cotte v Gilbert, 226 N.Y. 103, 107). Nor is the proposed remedy. It is difficult to believe that section 11 of article VII is not intended to be resilient enough to meet so pressing a societal need in an age when, for over 40 years now, the interrelationship between our economy and our government is no longer dependent on whether the thinking of a Keynes or of a Friedman holds forth in the White House or the Governor's mansion.

A public "objective" like the one here may require multiple steps or projects for its fulfillment and these components, of course, can often readily be classified into "categories." However, they need not take away from the singleness of a permissible objective to which they are subordinate just as the four categories listed in the proposition before us do not obscure the singleness of its purpose. Their enumeration there appears to be more statistical and informational rather than legal or economic in significance.

There is no stereotyped way to best assure the electorate an intelligent choice. If the four categories were not detailed in the particularization of how the economic development objective was to be implemented would that have satisfied those who would focus on the word "single"? Or if, instead, each of the four were submitted as a separate proposition, would it evoke challenges because each of the multiple projects of which it was made up, was not, in turn, put to a separate vote? After all, the proliferation of sets and subsets in such a situation can go on ad infinitum. What is more, the passage of some rather than all of such subproposals might as effectively frustrate a particular proposition's objective as would its repudiation as a whole.

The concept of a public referendum is the basic safeguard in the contracting of debts which the Constitution contemplated. Insistence that it be oversimplified in form or substance does a disservice to our citizens and is not what I conceive to be within the spirit of section 11 of article VII. If the amount of a bond issue sought to be approved is a large one, the voters may reject it for that very reason. If each of its "integrated" parts is objectionable to its own opponents, there may be a totality of more informed and interested critics than if there was but one category of projects to achieve the stated "purpose". There are those who well may oppose the incurring of debt on principle while "pay-as-you-go" is a viable alternative. In short, without further example, it is not at all to be taken for granted that propositions submitted will be adopted or rejected willy-nilly or that the true constitutional purpose will be carried out by overprotectiveness of the right to exercise the franchise.

Therefore, if we were not reversing and remitting with directions to dismiss the complaint, I would vote for a declaration of constitutionality.

JONES, J. (dissenting).

We cannot agree with the majority that the dispositions of the courts below must now be reversed and the complaint dismissed on the ground that the issue presented is premature. Section 11 of article VII of our State Constitution provides that no debt may be contracted by the State unless it has been authorized by law "for some single work or purpose, to be distinctly specified therein" and shall thereafter have been approved by the voters at a general election. Only one such proposition may be submitted at any general election. Chapter 455 of the Laws of 1977 was adopted in purported conformity with this constitutional mandate. It had two intended legal consequences: one to authorize the creation of a State debt to an amount not exceeding $750,000,000 for the purpose of "promoting and implementing a comprehensive and integrated economic action program", the other to direct submission of the proposition to the voters at the general election on November 8, 1977. While it might be said that the authorization aspect of the act would not be subject to judicial attention until after the results of the election had been tabulated and it was known that the voters had approved the proposal, the direction for submission to the voters was ripe for possible judicial examination at any time after the Governor's signature on July 19, 1977.

The parties have complicated our consideration of this appeal. The failure of the New York Public Interest Research Group to have joined the New York State Board of Elections and plaintiffs' willingness thereafter to dismiss the action as to the chairman of that board have substantially hindered the courts in fashioning a complete remedy — one which would include a direction for the removal of the proposition from the November 8 ballot. Additionally and equally unfortunately, that circumstance has served to create an impression of prematurity on which the dissenter below and now the majority rely. Had the Board of Elections been made party, effective direction could have been given for the removal of the proposition from the ballot. The present appeal would then have matched the circumstance which existed in Matter of McCabe v Voorhis (243 N.Y. 401), and that case would have been authority for reaching and resolving the merits of the present appeal, notwithstanding that the electorate has not yet spoken. The majority opinion cites a number of other instances in which, where the Board of Elections had been made a party, the courts have ruled on the validity of propositions to be submitted to the electorate prior to the actual vote (p 531).

In our view, while the absence of the Board of Elections on this appeal makes it more difficult to grant the applicable remedy,* it does not serve to make what would otherwise be a ripe controversy premature and thus beyond the reach of judicial consideration. There can be no denial of the genuineness of the dispute between the parties or of its present reality. There is a real controversy, not abstract differences of opinion or an academic disputation. (1 Anderson, Actions for Declaratory Judgments, § 9, p 51.) While absence of parties may limit the choice of implementing remedies, it should not be held to vitiate what would otherwise be a justiciable controversy appropriate for judicial determination in an action for a declaratory judgment. The circumstance that the court may not, without great difficulty, direct the performance of a mechanical change in the voting machines and on the written ballot does not oust the court of jurisdiction to resolve the substantive differences between those persons who are directly interested and are parties to the litigation. From another perspective, to say that a declaration of unconstitutionality by this court would be legally and practically useless or futile unless applied directly to the voting machines would be to ignore the vitality of our judicial writings, which we are not willing to do. In our view the absence of the Board of Elections does not oust our court of authority or relieve us of responsibility for its exercise, and no case is cited by the majority which holds that it does.

We recognize the element of uncertainty stressed by the majority which is unquestionably present in this case — the comprehensive and integrated economic action program may never be approved at the polls, a circumstance comparable to that in the cases that the majority cites. This contingency factor, relevant to the authorization aspect of the act but irrelevant to the submission aspect, might have pursuaded the lower courts to reject the present action for a declaratory judgment. Whether to entertain such an action, however, is to be determined in the exercise of judicial discretion (CPLR 3001). We cannot say that the determination of the Supreme Court, now affirmed at the Appellate Division, to accept the present action constituted an abuse of discretion as a matter of law (Woollard v Schaffer Stores Co., 272 N.Y. 304, 311-312).

Our judicial predicament is also made more difficult by the fact that the Attorney-General has not raised the defense of laches, by appropriate pleading or otherwise. It is only that circumstance which deters us from consideration of dismissal of the present action because of an unacceptable delay in commencing this action for a judicial declaration of the unconstitutionality of chapter 455. Advance publicity has been widespread, and neither the passage of the act by the Legislature on June 27, 1977 nor its signature by the Governor on July 19 could have come as a surprise to these plaintiffs. Then, to have postponed action until September 12, 1977 and thus to confront the courts and the Attorney-General with the necessity — in telescoped proceedings inescapably conducted under an acute consciousness of the imminence of the November 8 election — to consider and resolve an issue of such significance, is an imposition on the people of the State of New York. Nonetheless, the defense of laches was not raised, and, litigation having progressed this far, the courts have a responsibility to determine the issue regardless of the difficulties created for the lawyers in the litigation and even for the voters, who are kept in doubt and perhaps in confusion as to the status of the bond proposition. Certainly the failure of our court to address the merits can only deepen and compound the confusion.

On the merits, we would hold that chapter 455 falls short of obedience to the command of section 11 of article VII of our State Constitution, and very much for the reasons expressed by Mr. Justice LARKIN at the Appellate Division. In our view, the debt contemplated by the present enactment is not "for some single work or purpose" within the constitutional contemplation. We would now go no further. It would be imprudent and unwise in the present circumstances to undertake to define or to describe the permissible outer boundaries of the single-purpose requirement. Focus on linguistics cannot be determinative in interpretation of this provision — perhaps is not even helpful; the constitutional history submitted to us is far from conclusive. The argument that a single purpose may be discerned from the natural and necessary relatedness of functional components of a program does not commend itself to our acceptance. We go no further than to say that the presently proposed debt program does not meet the constitutional requirement and to note that we decline to attempt, on the present accelerated submissions, any formulation as to the meaning of the constitutional provision.

We do observe that, unlike the propositions which authorized State indebtedness in 1932, 1933 and 1934 to which our attention is drawn by the Attorney-General, chapter 455 of the Laws of 1977 contains no allocation of the proceeds of the bond sales to different components of the comprehensive and integrated economic action program. (Cf. L 1932, chs 566, 567, § 1; L 1933, chs 260, 259, § 2; L 1934, chs 718, 717, § 2.) There is no legislative or statutory representation, to say nothing of legally enforceable assurance, as to what allotment or even economic emphasis would be apportioned to the four aspects of the program. In effect the voters are asked to approve a proposition with respect to which only the total amount is known, and which if approved would serve as a precedent for placing within executive and legislative reach largely unallocated and thus uncontrolled expenditure opportunities.

One of the great purposes of a Constitution is to restrain a majority, which will usually take care of itself. Hence, constitutional limitation is designed to protect against a transitory electoral majority as it is also designed to control transitory legislative and executive branches. The provisions of our Constitution are to be liberally interpreted, but surely not to be distorted to the point of near meaninglessness. (Cf. Flushing Nat. Bank v Municipal Assistance Corp. for City of N. Y., 40 N.Y.2d 731, 739.)

For the reasons stated we would affirm the order of the Appellate Division.

Order insofar as appealed from reversed, without costs, and the case remitted to Supreme Court, Albany County, with directions to dismiss the complaint in accordance with the opinion herein.


* There was a time in the early history of the State when the Judges of the higher courts were designated members of the Council of Revision, which was required to determine the constitutionality of proposed legislation. This council, and the concept it represented, was abolished by the second State Constitution in the early part of the 19th century (see Lincoln, Constitutional History of New York, vol I, pp 592, 639, 743-749; vol II, pp 145-146).
* Even now we are informed that, were our court to issue implementing directives, practical means could be found, perhaps at some expense, to avoid voter confusion.


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