OPINION OF THE COURT
Plaintiff taxpayers challenge two directives by executive and county officials that recognize out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits. We conclude that plaintiffs' actions were properly dismissed.
Four states—Massachusetts, Connecticut, Iowa and Vermont— now issue marriage licenses to same-sex couples, without any residency requirement, as does Canada.
In June 2006, defendant Andrew J. Spano, Westchester County Executive, citing opinion letters of the Attorney General and the Comptroller,
In September 2006, defendant Nancy G. Groenwegen, President of the New York State Civil Service Commission and Commissioner of the New York State Department of Civil Service, issued an Employee Benefits Division Policy Memorandum on "[r]ecognition of the spousal relationship in marriages between partners of the same sex conducted in jurisdictions where they may be legally performed," effective May 1, 2007. The memorandum explained that the State had provided eligibility for employee benefits, including New York State Health Insurance Program benefits, to the domestic partners of state employees, including same-sex partners, since the mid-1990s. The coverage, while mandatory for the State itself, was discretionary for Participating Agencies (PAs) and Participating Employers (PEs). As a result, the State had been sued by an employee of a school district that had opted not to extend health insurance coverage to domestic partners (see Funderburke v New York State Dept. of Civ. Serv., 13 Misc.3d 284 [Sup Ct, Nassau County 2006], vacated 49 A.D.3d 809 [2d Dept 2008]). The Department of Civil Service then
In September 2006, plaintiffs Margaret Godfrey, Rosemarie Jarosz and Joseph Rossini, residents of and taxpayers in Westchester County, commenced an action against County Executive Andrew J. Spano, alleging two causes of action. In their first cause of action, brought pursuant to General Municipal Law § 51, plaintiffs claim that, by issuing Executive Order No. 3, Spano illegally legislated in the areas of marriage and domestic relations in a manner inconsistent with the New York State Constitution and state law. In their second cause of action, plaintiffs allege that Spano violated New York State Constitution, article IX, § 2 (c) and Municipal Home Rule Law § 10 (1) (i). Plaintiffs seek a declaratory judgment that Executive Order No. 3 is "illegal, ultra vires, unconstitutional and otherwise null and void" and a permanent injunction preventing the implementation or effectuation of the Executive Order.
Michael Sabatino and Robert Voorheis, a same-sex couple who married in Canada, were permitted to intervene.
Supreme Court granted the motions to dismiss and declared that Executive Order No. 3 is "a valid exercise of the County
In regard to the Godfrey plaintiffs' first cause of action, the Appellate Division held that the Executive Order was not illegal, because it "requires that same-sex marriages be recognized to `the maximum extent allowed by law.' By its terms, therefore, the Executive Order can never require recognition of such a marriage where it would be outside the law to do so." (Id. at 942-943.) In regard to the second cause of action, the court held that plaintiffs had failed to demonstrate the required "personal interest in the dispute beyond that of any taxpayer" (id. at 943), so that they lacked standing.
In the other case before us, plaintiffs Kenneth J. Lewis, Denise A. Lewis, Robert C. Houck, Jr., and Elaine A. Houck, New York State taxpayers represented by the same Alliance Defense Fund representing the plaintiffs in the case against Spano, commenced an action against the New York State Department of Civil Service and its Commissioner, Nancy G. Groenwegen, in May 2007. The Lewis plaintiffs allege that defendants violated State Finance Law § 123-b (first cause of action), the separation of powers doctrine (second cause of action), New York State Constitution, article VII, § 8 (third cause of action), and State Administrative Procedure Act § 202 and New York State Constitution, article IV, § 8 (fourth cause of action). Plaintiffs seek a declaratory judgment that defendants' recognition of out-of-state same-sex marriages "is illegal, unconstitutional, ultra vires, void and constitutes an illegal expenditure of State funds" and a permanent injunction directing defendants to cease and desist from recognizing out-of-state same-sex marriages.
Peri Rainbow and Tamela Sloan, a same-sex couple who married in Canada, were permitted to intervene. Defendants and intervenors moved to dismiss plaintiffs' complaint under CPLR 3211 (a) (7). Plaintiffs cross-moved for summary judgment.
Supreme Court denied the Lewis plaintiffs' cross motion for summary judgment, searched the record and granted summary judgment to defendants, and declared that "[t]he policy memorandum issued by the New York State Department of Civil Service Employee Benefits Division in which it recognized, as spouses, the parties to any same sex marriage, performed in
The Appellate Division, Third Department, affirmed Supreme Court's order in a divided opinion (60 A.D.3d 216 ). The Appellate Division majority concluded that the common-law marriage recognition rule warranted dismissal of plaintiffs' first cause of action alleging an unlawful disbursement of public funds (id. at 222-223). In regard to plaintiffs' second cause of action, alleging violation of the separation of powers doctrine, the Appellate Division held that defendants' "recognition of same-sex spouses falls squarely within the scope of the policy expressed in Civil Service Law §§ 161 and 164 to provide benefits to the spouses and dependent children of state employees" (id. at 223). The majority further rejected plaintiffs' claim that the Department of Civil Service violated New York Constitution, article VII, § 8 (1) by using public funds to fund the private agendas of individuals and organizations seeking marriage equality in New York. "Inasmuch as the Department's policy furthers a valid governmental purpose to benefit public employees, it cannot fairly be said that it is invalid as promoting a private undertaking" (id. at 224). Finally, the court held that "the determination to recognize same-sex marriages is not invalid for the Department's failure to comply with the formal rule-making procedures of the State Administrative Procedure Act because the determination is an interpretative statement that is merely explanatory" (id.).
Two Justices wrote a separate concurring opinion. They would have affirmed Supreme Court's order on a narrower ground, pointing out that "[t]he Legislature has vested the President of the Civil Service Commission with broad discretion in defining, for purposes of health insurance coverage for state employees, the terms spouse and dependent children" (id. at 224 [Lahtinen and Malone, Jr., JJ., concurring]).
We granted plaintiffs in both cases leave to appeal (12 N.Y.3d 705 ), and we now affirm both Appellate Division orders.
The Godfrey plaintiffs have abandoned their second cause of action, containing allegations against Spano based on New York State Constitution, article IX, § 2 (c) and Municipal Home Rule Law § 10 (1) (i) (see brief of plaintiffs-appellants Margaret Godfrey et al., at 3). They rest their case on the claim, made pursuant to General Municipal Law § 51, that Spano illegally legislated in the areas of marriage and domestic relations.
A taxpayer suit under General Municipal Law § 51 "lies only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes" (Mesivta of Forest Hills Inst. v City of New York, 58 N.Y.2d 1014, 1016  [internal quotation marks omitted], quoting Kaskel v Impellitteri, 306 N.Y. 73, 79 ). Because plaintiffs allege no fraud, their action succeeds only if they state a claim for illegal dissipation of municipal funds. Plaintiffs' amended complaint contains the allegation that Executive Order No. 3 "has resulted and will continue to result in the illegal disbursement of County funds" by providing County-funded benefits to couples in same-sex marriages. Although on a motion to dismiss plaintiffs' allegations are presumed to be true and accorded every favorable inference, conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss (Caniglia v Chicago Tribune-N.Y. News Syndicate, 204 A.D.2d 233, 233-234 [1st Dept 1994]). Here, plaintiffs have not identified any specific impact that the Executive Order has had on any public employee or private individual in Westchester County. Even assuming the allegations in the Godfrey complaint to be true, plaintiffs fail to specify a circumstance where taxpayer funds were expended as a result of the Executive Order that would not have been expended in the absence of the order. We find this lack of specificity fatal to plaintiffs' cause of action.
In support of his motion to dismiss, Executive Spano submitted an affidavit of the Commissioner of Finance for Westchester County, dated November 17, 2006. The Commissioner stated that he could think of "no instance where the County has expended funds or extended benefits in connection with [the] Executive Order." That statement is unsurprising in that Westchester County already insured same-sex domestic partners and dependents of county employees before the Executive Order was issued, requiring only that applicants for domestic partner
We do not adopt the Second Department's rationale for affirmance—that the Executive Order did not purport to change the law, because it included language directing recognition of same-sex couples "to the maximum extent allowed by law." We find such language, which may appear either expansive or restrictive depending on the reader, ambiguous, and we would not encourage executive officials to try to insulate their orders from judicial review by this means. Nevertheless, because the Godfrey plaintiffs have failed to allege an unlawful expenditure of taxpayer funds, they have not stated a cognizable claim under General Municipal Law § 51. Consequently, we affirm the order of the Appellate Division, dismissing the Godfrey plaintiffs' complaint.
In the other matter, the Lewis plaintiffs have abandoned their third and fourth causes of action, containing claims based on New York State Constitution, article VII, § 8, State Administrative Procedure Act § 202, and New York State Constitution, article IV, § 8 (see brief of plaintiffs-appellants Kenneth J. Lewis et al., at 3). The surviving claims invoke State Finance Law § 123-b and the separation of powers doctrine.
With respect to State Finance Law § 123-b, plaintiffs make conclusory allegations that defendants "are expending and will expend State funds and/or resources supplied from New York State tax revenue," without claiming specific expenditures that would not otherwise have been incurred. While a taxpayer may bring suit under this statute to prevent the unlawful expenditure of state funds "whether or not such person is or may be affected or specially aggrieved" (State Finance Law § 123-b ), there must be some specific threat of an imminent expenditure. "[C]ourts have been inhospitable to plaintiffs who seek
Plaintiffs' remaining cause of action, which alludes to the separation of powers doctrine, boils down to the claim that defendants acted "inconsistently with the Legislature's pronouncements on spousal benefits." Specifically, plaintiffs allege that defendants acted in violation of Civil Service Law § 164. The statute itself refutes plaintiffs' claim.
Under Civil Service Law § 161 (1), the President of the Civil Service Commission is "authorized and directed to establish a health insurance plan for state officers and employees and their dependents." Civil Service Law § 164 (1) provides that every state employee "shall be entitled to have his spouse and dependent children, as defined by the regulations of the president, included in the coverage upon agreeing to pay his contribution, if any, to the cost of such coverage for such dependents" (emphasis added). The statute thus expressly gives the President of the Civil Service Commission the authority to define "spouse." Moreover, the statute does not restrict the President's provision of health insurance to spouses and dependent children. The language is of entitlement, not restriction.
Furthermore, the legislative history supports the view that the President of the Civil Service Commission was deliberately given broad discretion to define who will qualify for coverage. Governor Harriman, commenting on the 1956 legislation that created the New York State Health Insurance Program, noted that "[i]t would not be practical to specify in legislation the precise type of coverage to be provided under a comprehensive health insurance plan. The law must make it possible for the best plan to be worked out in consultation with representatives of the employees affected." (Governor's Message to the Legislature, Feb. 16, 1956, 1956 NY Legis Ann, at 419.) The Director of the Division of Personnel Services of the Department of Civil Service at that time, Edward D. Meacham, testified before the Joint Legislative Committee on Health Insurance Plans that
It is clear, therefore, both from the plain language of the statute and from the legislative history, that the Legislature intended to give the Department of Civil Service—guided of course by the collective bargaining process
We thus affirm the order of the Appellate Division, dismissing the Lewis complaint.
Because we can decide the cases before us on narrower grounds, we find it unnecessary to reach defendants' argument that New York's common-law marriage recognition rule is a proper basis for the challenged recognition of out-of-state same-sex marriages. We end by repeating what we said in Hernandez v Robles, expressing our hope that the Legislature will address this controversy; that it "will listen and decide as wisely as it can; and that those unhappy with the result—as many undoubtedly will be—will respect it as people in a democratic state should respect choices democratically made" (7 NY3d at 366).
Accordingly, in each case the order of the Appellate Division should be affirmed with costs.
CIPARICK, J. (concurring).
Although I agree with the result reached by the majority, I write separately to set forth my view that the orders under review should be affirmed on the ground that same-sex marriages, valid where performed, are entitled to full legal recognition in New York under our State's long-standing marriage recognition rule. The issue is squarely presented in these appeals and plaintiffs' standing allegations are sufficient to allow us to reach it. The effect of the majority's rationale in affirming these orders will be to permit an unworkable pattern of conflicting executive and administrative directives promulgated pursuant to the individual discretion of each agency head. We ought to avoid the confusion that would arise from a same-sex couple being considered legally married by one agency for one purpose but not married by another agency for a different purpose.
As the majority recognizes, we determined in Hernandez v Robles (7 N.Y.3d 338 ) that, currently, under the Domestic Relations Law, same-sex marriages may not lawfully be entered into in New York, and our State's Constitution does not compel the recognition of same-sex marriages performed within the state. However, as the majority also notes, Hernandez did not address the issue whether New York law recognizes same-sex marriages validly performed in other jurisdictions. Several jurisdictions that border our state currently perform or will soon perform same-sex marriages, including Massachusetts (see Goodridge v Department of Pub. Health, 440 Mass. 309, 798 N.E.2d 941 ; Mass Acts 2008, ch 216, § 1 [repealing statute that voided marriages between nonresidents contrary to the law of the state of residence]), Connecticut (see Kerrigan v
Principles of comity have given rise to New York's well-settled marriage recognition rule, which "recognizes as valid a marriage considered valid in the place where celebrated" (Van Voorhis v Brintnall, 86 N.Y. 18, 25 ; see also Matter of May, 305 N.Y. 486, 490 ). Indeed, through our marriage recognition rule, we have recognized out-of-state marriages, valid where contracted, despite that the parties' intent in entering the marital contract elsewhere was to evade New York laws proscribing their marriage from being performed here (see Thorp v Thorp, 90 N.Y. 602, 605-606 ; Van Voorhis v Brintnall, 86 NY at 32-33; see also Fisher v Fisher, 250 N.Y. 313, 318 ; Shea v Shea, 268 App Div 677, 687-688 [2d Dept 1945, Johnston, J., dissenting in part], revd on dissenting op of Johnston, J., 294 N.Y. 909  [recognizing as valid an Illinois common-law marriage]). For example, in Matter of Mott v Duncan Petroleum Trans. (51 N.Y.2d 289 ), we recognized and gave effect to a common-law marriage contracted in the state of Georgia, despite the fact that New York does not recognize common-law marriages (id. at 291; Domestic Relations Law § 11). Although the spouses in Mott were domiciliaries of New York, they had vacationed for weeks at a time in Georgia, representing themselves there as husband and wife, sufficient to create a common-law marriage in that state (51 NY2d at 291-294). Similarly, in Matter of May, we recognized as valid a marriage performed in Rhode Island between a man and his niece, both residents of New York (see 305 NY at 493). Although New York law prohibits such a marriage as incestuous (Domestic Relations Law § 5), Rhode Island law at the time permitted marriage among blood relatives "`solemnized among the Jews, within the degrees of affinity or consanguinity allowed by their religion'" (id. at 492, quoting RI Gen Laws, tit XXIV, ch 243, § 4).
Two exceptions to the marriage recognition rule have evolved (see Matter of May, 305 NY at 490). The first excepts from recognition out-of-state marriages where a New York statute clearly expresses "the Legislature's intent to regulate within this State marriages of its domiciliaries solemnized abroad" (id. 493). In other words, for this "positive law" exception to apply, a statute must expressly convey a legislative intent to void a marriage
Our Legislature has not expressly prohibited the recognition of same-sex marriages performed in other jurisdictions. Although the federal Defense of Marriage Act (DOMA) authorizes the states to pass so-called "mini-DOMAs"—and many states have done so (see e.g. Ga Code Ann § 19-3-3.1 [b] [declaring void" (a)ny marriage entered into by persons of the same sex pursuant to a marriage license issued by another state or foreign jurisdiction"])—New York has not, and the Legislature has enacted no other law expressly forbidding the recognition of same-sex marriages performed in other jurisdictions or expressing any legislative intent that such marriages be voided.
The second exception, which is narrowly applied and is sometimes called the "natural law" exception to the marriage recognition rule, denies recognition to out-of-state marriages abhorrent to New York public policy. The natural law exception has been invoked exceedingly rarely, only in cases involving incest or polygamy (see Van Voorhis, 86 NY at 26, citing Wightman v Wightman, 4 Johns Ch 343 [Ch Ct 1820] and Hutchins v Kimmell, 31 Mich. 126 ). We noted, in the closely related context of foreign divorce decrees, that "in a world of different people, [n]ations and diverse views and policies," the public policy exception to the appropriate exercise of comity is applied rarely (Matter of Gotlib v Ratsutsky, 83 N.Y.2d 696, 700 ), and the application of the exception must be predicated upon a demonstration of "proximately related public policies fundamentally offensive and inimical to those of this State" (id.). "This high burden springs from an ordered sense of respect and tolerance for the adjudications of foreign Nations, [and the] parallel[ respect]. . . commanded among the States by the Full Faith and Credit Clause of the United States Constitution" (id.,
The "natural law" or public policy exception to the marriage recognition rule is inapplicable to same-sex marriages solemnized in our sister states or other foreign jurisdictions. The public policy of the State is deduced from the constitutional, statutory and decisional law, as well as from "prevailing social and moral attitudes of the community" (Intercontinental Hotels Corp. [Puerto Rico] v Golden, 15 N.Y.2d 9, 14 ). Today,
In addition to statutory law, New York decisional law recognizes same-sex life partners as family members, such that the surviving partner can challenge an eviction proceeding (see
In these related matters, the Westchester County Executive ordered that all county employees, boards and agencies should "recognize same sex marriages lawfully entered into outside the State of New York . . . for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law." (Westchester County Executive Order No. 3 of 2006.) The Department of Civil Service issued a policy memorandum announcing that the Department would recognize, as spouses, the parties to any same-sex marriage performed in jurisdictions where such marriage is legal. The challenges to these actions fall squarely within the purview of the marriage recognition rule and, because neither of the exceptions to that rule apply, I concur in the affirmance of the Appellate Division orders.
In each case: Order affirmed, with costs.