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In The

Supreme Court of The United States

October Term, 1997
_____________

ROBERT L. SCHULZ and JOHN SALVADOR, JR.

Petitioners,

THE NEW YORK STATE EXECUTIVE, GEORGE PATAKI, GOVERNOR; and 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,

Respondents.

 


 

 

PETITION FOR A WRIT OF CERTIORARI TO THE NEW YORK STATE COURT OF APPEALS

 


 

QUESTIONS PRESENTED

1. Is a state’s judicially determined purpose of "minimizing uncertainty in the minds of potential investors," sufficiently compelling to justify the enforcement of a state law which abridges the fundamental right of individual citizens of that state to petition the state court for a redress of grievances, even grievances that are deeply rooted in the State Constitution?

2. Whether plaintiffs’ fundamental rights to petition the government for a redress of constitutional grievances (First Amendment), to a guarantee against State laws which abridge fundamental privileges and immunities (Section 1, Clause 2 of the Fourteenth Amendment), to have state judges bound by the provisions of the U.S. Constitution (Article VI, cl 2), and to a government republican in form and substance (Article IV, Section 4) have been violated by the New York State Legislative and Executive when they enacted State Finance Law Section 123-b(1) which, in the case of matters involving the incurrence of public debt, is preventing plaintiffs from petitioning State courts for a redress of State constitutional grievances, and by the N.Y. State Judiciary in enforcing State Finance Law 123-b(1).

3. Whether plaintiffs’ fundamental right, as expressed in Article III, Section 16 of the New York Constitution (State Legislature prohibited from enacting a law which provides that another law is a part of it or applicable to it without "inserting" the other law in it, at least by reference) and, thus, plaintiffs’ rights under the 14th Amendment’s "privileges and immunities clause" and under Article IV’s "guarantee clause" have been violated by the enactment of Chapters 412 and Chapter 413 of the New York Laws of 1996.

4. Whether plaintiffs’ fundamental right, as expressed in Article VII, Section 11 of the New York Constitution (State Legislature prohibited from enacting a law to create a state debt subject to voter approval, unless the purpose of the debt is "distinctly specified therein") and, thus, plaintiffs’ rights under the 14th Amendment’s "privileges and immunities clause" and under Article IV’s "guarantee clause" have been violated by Chapter 412 when read together with Chapter 413 of the New York Laws of 1996.

5. Whether plaintiffs’ fundamental right under the First Amendment to the United States Constitution and under Article I, Section 9 of the New York Constitution (guaranteeing free elections, i.e., elections free from governmental interference and corruption) and, thus, plaintiffs’ rights under the 14th Amendment’s "privileges and immunities clause" and under Article IV’s "guarantee clause" have been violated by the State’s promotional activities to secure passage by the voters of a statewide ballot question.

 

PARTIES

The names of all parties to the proceeding in the court whose judgment is sought to be reviewed here appear in the caption of the case.

 

Note: The Table of Contents and The Table of Authorities have been omitted from this website.

IN THE SUPREME COURT OF THE UNITED STATES

ROBERT L. SCHULZ and JOHN SALVADOR, JR.

Petitioners,

THE NEW YORK STATE EXECUTIVE, GEORGE PATAKI, GOVERNOR; and 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,

Respondents.

 

OPINIONS BELOW

The Opinion and Order of the New York State Court of Appeals is reported at 92 NY2d 1, entered June 9, 1998.

The Decision and Order of the New York State Supreme Court, Appellate Division, Third Department is reported at 233 AD2d 43, entered July 17, 1997.

The Decision and Order of the New York State Supreme Court, Albany County, is unreported, entered November 7, 1996.

 

JURISDICTION

The Opinion and Order of the New York Court of Appeals was entered on June 9, 1998.

In accordance with Rule 13.4 of this Court, this petition is filed within 90 days of the date of the Opinion and Order of the New York Court of Appeals.

The jurisdiction of this Court is invoked under 28 U.S.C. Section 1257.

 

FEDERAL CONSTITUTIONAL PROVISIONS INVOLVED

1. The preamble to the Constitution of the United States provides: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common Defence, promote the general Welfare and secure the Blessing of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

2. Article III, Section 2 of the Constitution of the United States provides: "The judicial power shall extend to all cases in Law and Equity, arising under this Constitution...."

3. Article VI of the Constitution of the United States provides in relevant part: "The Judges in every state shall be bound by this Constitution."

4. The First Amendment to the United States Constitution reads, in relevant part: "Congress shall make no law...abridging...the right of the people…to petition the Government for a redress of grievances."

5. The Fourteenth Amendment (Clause 2) to the United States Constitution provides, in relevant part: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...."

6. An implicit constitutional (structural) safeguard is "separated powers" among the legislative, executive and judicial branches.

7. Article IV, Section 4 of the United States Constitution reads in relevant part: "The United States shall guarantee to every citizen in this Union a republican form of government."

 

NEW YORK CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

8. New York State Finance Law Section 123-b(1) reads: "notwithstanding any inconsistent provision of law, any person, who is a citizen taxpayer, whether or not such person is or 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 who in the course of his or her duties has caused, is now causing, or is about to cause a wrongful expenditure, misappropriation, misapplication, or any other illegal or unconstitutional disbursement of state funds or state property, except that the provisions of this subdivision shall not apply to the authorization, sale, execution, or delivery of a bond issue or notes issued in anticipation thereof by the state or any agency, instrumentality or subdivision thereof or by any public corporation or public benefit corporation." (Petitioners’ emphasis)

9. Article I, Section 9.1 of the New York Constitution provides in relevant part: "No law shall be passed abridging the rights of the people peaceably to assemble and to petition the government or any department thereof...."

10. Article III, Section 16 of the New York Constitution reads: "No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act."

11. Article VII, Section 11 of the New York Constitution reads: "No debt shall be hereinafter 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." (Petitioners’ emphasis).

12. Chapter 412 of the New York Laws of 1996 entitled, "The Clean Water/Clean Air Bond Act."

13. Chapter 413 of the New York Laws of 1996 (untitled).

 

STATEMENT OF THE CASE

A. INTRODUCTORY STATEMENT

NOTE: In October, 1996, petitioners filed two lawsuits in which identical federal questions were raised. One suit was filed in the U.S. District Court on October 13, 1996. The other was filed in the N.Y. State Supreme Court for Albany County on October 16, 1996.

The federal case was decided by the Second Circuit on April 6, 1998. On July 4, 1998, a Petition for a Writ of Certiorari to the US Court of Appeals for the Second Circuit was filed with this Court. See No. 98-81. This petition relates to the State case; the appendices include the decisions by the federal courts. The state case was decided by the N.Y. Court of Appeals on 6/9/98.

The identical federal questions raised in the two lawsuits can be summarized as follows:

1. Whether State Finance Law Section 123-b(1) is an unconstitutional "door closing" law which violates the First Amendment and Article I, Section 9.1 of the N.Y. Constitution and, thus, the federal "privileges and immunities" clause of the 14th Amendment and the "guarantee" clause of Article IV, Section 4 of the U.S. Constitution, and whether enforcement of SFL 123-b(1) by State judges violates Article VI of the U.S. Constitution.

2. Whether Chapter 412 and Chapter 413 of the N.Y. Laws of 1996 are violative of Article III, Section 16 and the "distinctly specified therein" requirement of Article VII, Section 11 of the N.Y. Constitution and, thus, the federal "privileges and immunities" clause of the 14th Amendment and the "guarantee" clause of Article IV, Section 4 of the U.S. Constitution.

3. Whether the actions of certain state officials to entice "yes" votes to sway the results of a statewide vote on Chapter 412 were violative of the 1st Amendment and Article I, Section 9.1 and Article VII, Section 8 of the N.Y. Constitution and, thus, the federal "privileges and immunities" clause of the 14th Amendment and the "guarantee" clause of Article IV, Section 4 of the U.S. Constitution.

The Court is asked to declare New York State Finance Law Section 123-b(1) unconstitutional null and void because it is violative of the right to petition clause of the First Amendment and, therefore, the guarantee clause of Article IV, Section 4 and the privileges and immunities clause of the Fourteenth Amendment. Plaintiffs had argued at each stage of the proceedings before the New York courts that SFL 123-b(1) was unconstitutional. The New York Court of Appeals failed to address the question but relied on SFL 123-b(1) to dismiss plaintiffs’ principal claims -- that Chapters 412 and 413 of the New York Laws of 1996 were enacted in violation of Article III, Section 16 and the "distinctly specified therein" requirement of Article VII, Section 11 of the New York Constitution.

Assuming the Court will declare SFL 123 b(1) to be unconstitutional, the Court is respectfully requested to then declare Chapter 412 and 413 of the New York Laws of 1996 to be unconstitutional, null and void because they were adopted in violation of Article III, Section 16 of the New York State Constitution, and are, therefore, violative of plaintiffs’ fundamental right to a government republican in form and substance under Article IV, Section 4 of the U.S. Constitution, and plaintiffs’ civil right to freedom from state laws that abridge their fundamental privileges and immunities as guaranteed by Clause 2 of the Fourteenth amendment to the U.S. Constitution.

This is not a taxpayer action, i.e., a petition for judicial review of the power of the Legislature and Executive branches to tax and spend. Rather this is a petition by citizens for federal judicial review, under, inter-alia, the U.S. Constitution’s First Amendment and the "guarantee" and "privileges and immunities" clauses, of the power of the NY’s governmental leaders: a) to make and enforce a "door closing" law that disallows persons a forum in which to assert their constitutional rights (if the matter involves the incurrence of public debt), even if the complaint is deeply rooted in the Constitutions of New York and of the United States; and b) to trade on the credit of the Governor’s office to raise money to pay for a blanket of media propaganda with which to cover the voters in order to sway the results of a vote on a ballot question. Plaintiffs’ basic right to a free election was violated.

Plaintiffs have detailed some of the constitutional provisions that have been violated and their injuries that fall within the zones of interest to be protected by those constitutional provisions. See Tables 2 - 4 which follow page 18 of this section of the Petition.

Plaintiffs have alleged that New York State Finance Law Section 123-b(1) is violative of the First Amendment because on its face, and in its application, it strips plaintiffs of their right to petition the government for a redress of constitutional grievances. The decision by the New York Court of Appeals failed to consider plaintiffs’ First Amendment challenge to SFL 123-b(1). Instead, the Court merely restated the purpose of SFL 123-b(1): "minimizing the uncertainty of potential investors." The Court then used SFL 123-b(1) to dismiss plaintiffs’ principal claims against Chapters 412 and 413 of the New York Laws of 1996.

Plaintiffs have alleged that SFL 123-b(1), Chapters 412 and 413, and the State’s actions in propagandizing for a "yes" vote should be declared unconstitutional, because, inter alia, each is violative of Section 1, Clause 2 of the Fourteenth Amendment of the US Constitution -- the so-called "privileges and immunities ("P&I") clause." The New York Court of Appeals did not reach these questions.

Plaintiffs have also alleged that each of the three actions should be declared unconstitutional because each is violative of Article IV, Section 4 -- the so-called "guarantee clause" -- under which plaintiffs are guaranteed "a republican form of government" in any state in which they choose to reside, including New York State. In agreeing to join the union in 1787, New Yorkers were guaranteed under Article IV, Section 4, that the United States government would guarantee that the citizens of New York would always enjoy a government republican in form and substance, which includes: popular sovereignty; self-government; a government that derives its powers from the consent of the governed; and a government limited by written Constitutions. But, the New York Court of Appeals did not reach these questions.

Finally, plaintiffs have also alleged that the behavior of the New York State Governor violated plaintiffs’ First Amendment right to a free election when he set up a political action committee and used it as an arm of the government to trade on the credit of his office to raise millions of dollars from private sources, including corporations that have business before the State, in order to cover the electorate with a blanket of media propaganda to sway the results of a vote on a statewide ballot question by enticing "yes" votes. The New York appeals courts abused their discretion in deciding not to address this question which was decided by the Court of original instance and fully briefed before both of the appeals courts.

 

B. STATEMENT OF FACTS

In 1975, the New York State Legislature and the Executive adopted a law [State Finance Law Section 123-b(1)] which, in its plain language and effect, denies citizens their right to petition their government for a redress of grievances deeply rooted in the New York Constitution -- i.e., to assert their constitutional rights in any forum -- by specifying that citizens shall not be allowed to maintain a lawsuit if the subject matter deals with public debt -- i.e., the "authorization, sale, execution or delivery of a bond issue or notes issued in anticipation thereof by the State or any agency, instrumentality or subdivision thereof, or by any public corporation or public benefit corporation."

In 1979, in violation of the "Separate Powers" doctrine, the New York Court of Appeals issued its decision in Wein v. Comptroller, 46 NY2d 394, ruling that SFL 123-b(1) "does indicate a reasonably clear legislative intent to prevent taxpayer challenges with respect to a State bond issue or notes issued in anticipation thereof [SFL 123-b(1)]. Under the circumstances it would be inappropriate for the courts to confer standing in these cases since such a determination would, in effect, render the statutory ‘exception’ a nullity and ignore the expressed legislative policy to the contrary," and that to allow citizens to challenge legislative acts that authorize the incurrence of public debt would "increase the cost of raising revenue by creating uncertainty in the minds of potential investors." (Plaintiffs’ emphasis). Note: The constitutionality of SFL 123-b(1) under the First Amendment was neither raised, presented nor determined in Wein.

The New York Judicial branch has been honoring SFL 123-b(1) by dismissing claims that involve public borrowing. By doing so it has been cooperating with the Executive and Legislative branches, allowing the N.Y. Constitution, in effect, to be changed by the Legislature: first, by SFL 123-b(1), and then by various legislative acts which authorize public borrowing and which are obnoxious to the N.Y. Constitution but which are shielded from citizen suits and judicial review by the impenetrable, door-closing barrier represented by SFL 123-b(1).

The latest example of this is the June 9, 1998 decision by the N.Y. Court of Appeals which is the subject of this petition. The decision by the N.Y. Court of Appeals, and those of it two lower courts, are included as Appendix A, B and C hereto. The N.Y. Court of Appeals dismissed, for lack of standing by virtue of SFL 123-b(1), plaintiffs’ Article III, Section 16 challenge to Chapters 412 and 413 of the N.Y. Laws of 1996. The court ruled, in effect, that it is more important for the state to "minimize uncertainty in the minds of potential investors" than to allow citizens to exercise their fundamental right to petition the government for a redress of grievances caused by legislative acts authorizing public borrowing (Chapter 412 and 413), even if those legislative acts are repugnant to the N.Y. Constitution. One would not know from a reading of the decision by the Court of Appeals that plaintiffs had fully argued at all three levels of the N.Y. court system that SFL 123-b(1) was unconstitutional as violative of the petition clause of the First Amendment. Having dismissed plaintiffs’ Article III, Section 16 claim against Chapters 412 and 413 for lack of standing under SFL 123-b(1), the state court was then able to dismiss plaintiffs’ Article VII, Section 11 "distinctly specified therein" claim against Chapters 412 and 413 as "irrelevant".

On or about July 14, 1996, the New York State Legislature passed Chapter 412 of the laws of 1996 ("Chapter 412 L96"), an Act authorizing the creation of a state debt to the amount of one billion seven hundred and fifty million dollars ($1,750,000,000) and providing for the submission to the people of a proposition or question therefor to be voted on at the general election in November 1996. The two-page Act was entitled, "The Clean Water/Clean Air Bond Act of 1996.

On or about July 14, 1996, the New York State Legislature also passed Chapter 413 of the Laws of 1996 ("Chapter 413 L96"), an Act "in relation to the implementation of the Clean Water/Clean Air Bond Act of 1996." Chapter 413 L96, which is 50 pages, was not given a title. It contained the definitions, purposes and specificity missing from Chapter 412 but required to be there by Article VII, Section 11 of the N.Y. Constitution.

On or about August 1, 1996, Governor Pataki signed Chapter 412 and Chapter 413 L96. Chapter 412 was to become law immediately upon approval by the voters at the general election on November 5, 1996. Chapter 413 L96 was to become law if the voters approved Chapter 412.

The public was told about the signing of Chapter 412. The public was not told about Chapter 413.

On or about August 2, 1996, the New York State Board of Elections, as required by law, sent the local Boards of Election a certification of the text of Chapter 412, the abstract of Chapter 412 and the form of submission of Proposal Number One, A Proposition relating only to Chapter 412. Nowhere in the certification to the local boards of election did the Board of Elections make any reference to Chapter 413.

The following is the question that went before the voters on November 5, 1996: "Shall Chapter 412 of the Laws of 1996 known as the Clean Water/Clean Air Bond Act of 1996, authorizing the creation of State debt to provide moneys for the preservation, enhancement, restoration and improvement of the State’s environment and natural resources in the amount of one billion seven hundred fifty million dollars ($1,750,000,000) be approved?" (Plaintiffs’ emphasis).

Chapter 412 is two pages in length. It makes absolutely no reference to Chapter 413 which is 50 pages in length. Chapter 412 became effective immediately upon approval by the voters at the general election on November 5, 1996. Chapter 413 became effective upon the approval by the voters of Chapter 412. However, the public was never told about Chapter 413! The public was not told that they were voting to approve Chapter 413 as well as Chapter 412.

On September 11, 1996, to entice a "yes" vote on the Bond Act proposition on the November ballot, Governor Pataki placed two of his most senior political operatives (Chief Counsel Michael Finnegan and Chief Spokesman, Gary Sheffer) on a temporary leave of absence for the expressed purpose of creating a political action committee (PAC), to raise more than $1 million from Wall Street firms and others that would benefit financially if the Bond Act passed the voters, and to use that money to pay for TV ads which would blanket the electorate for two weeks prior to the election. These TV spots featured the Governor explicitly exhorting the electorate to "vote yes" on Proposition No. 1 (approving Chapter 412). No other information was included.

The Governor used the PAC, in effect, as an arm of the government: to trade on the credit of his office; and to raise money, particularly from businesses that have business before the state, in order to pay for TV ads in which the Governor explicitly exhorted the voters to "vote yes" on the ballot question. Those businesses include, but by no means are limited to, those listed on Table 1 which follows this part of this petition. Of the $1.726m raised by the PAC, $1.275m was spent on the governor’s TV ads. This obviously interfered with plaintiffs’ First Amendment right to an election free from governmental interference and corruption. An informed electorate is crucial to our democratic-republic. However, other than the Governor’s TV "vote yes" exhortations, and the certification sent to the County Boards of Election regarding Chapter 412, the government failed in its duty to inform the voters about the purposes of the debt; Chapter 413, the 50-page bill which contained the details on the use of the Bond Act proceeds, was never mentioned..

The vote on the Bond Act (Chapter 412) passed with about 2.1 million "yes" votes and 1.7 million "no" votes.

 

C. STAGES IN THE PROCEEDING WHERE THE
FEDERAL QUESTIONS WERE RASIED

Re: Question No. 1 and No. 2 regarding the constitutionality of SFL 123-b (1).

On October 22, 1996, in the court of original instance, State defendants filed a motion to dismiss for lack of standing to raise the Article III, Section 16 claim, citing SFL 123-b(1). Defendants’ 10/22/96 Memorandum of Law in support of their motion to dismiss presented arguments in support of their motion on page 34.

On October 25, 1996, in response to defendants’ Motion to Dismiss for lack of standing under SFL 123-b(1), plaintiffs’ first raised the First Amendment challenge to SFL 123-b(1). Paragraphs 98 through 103 of plaintiffs’ 10/25/96 Affidavit contain plaintiffs’ arguments.

The Honorable Joseph Harris (J.S.C. - Albany County) did not dismiss any of plaintiffs’ original claims for lack of standing. See Appendix C hereto. Therefore, on appeal to the Appellate Division, plaintiffs did not argue the constitutionality of SFL 123-b(1) in their Appellants’ Brief. However, the State’s defendants did resurface the threshold question of standing under SFL 123-b(1) in their Respondents’ Brief. Therefore, in their Reply Brief, plaintiffs again presented and argued the question of the constitutionality of SFL 123-b(1). Plaintiffs did so on pages 1 and 7 -15 of their Reply Brief.

Finally, the question of the constitutionality of SFL 123-b(1) was fully briefed and argued by the plaintiffs before the New York Court of Appeals. They did so on pages 3 - 6 and 66 -75 of their Appellants’ Brief and on pages 1 - 3 of their Reply Brief.

 

Re: Questions No. 3 and No. 4 regarding the
constitutionality of Chapters 412 and 413.

The federal constitutional questions regarding Chapters 412 and 413 were presented in plaintiffs’ original complaint as filed in the New York State Supreme Court, Albany County, and were, of course, fully argued by plaintiffs and defendants at each of the three levels of the state court.

 

Re: Question No. 5 regarding the constitutionality
of the acts of the State in swaying the results of a statewide vote.

The federal constitutional questions regarding the behavior of state officials to sway the results of the statewide vote on Chapter 412 of the Laws of 1996 were presented in plaintiffs’ original complaint as filed in New York State Supreme Court and were, of course, fully argued at each of the three levels of the state court.

 

REASONS FOR GRANTING THE WRIT

A. BASIC RIGHTS HAVE BEEN TAKEN WAY BY THE
STATE. AT THIS POINT, ONLY THE U.S. SUPREME
COURT CAN RESTORE THOSE RIGHTS.

Plaintiffs’ First Amendment right to petition the government for a redress of grievances, involving unconstitutionally incurred public debt, has been taken away by the New York State Legislature and Executive. Only the U.S. Supreme Court can restore that right. The Legislature and the Executive enacted the exception language SFL 123-b(1) which declares, in essence, that the court house door is closed to citizen-petitioners in cases where they are seeking to obtain compliance with debt-limiting restrictions of the N.Y. Constitution. It is now necessary for the U.S. Supreme Court to declare SFL 123-b(1) to be unconstitutional.

Plaintiffs’ fundamental right to a "separation of powers" has been infringed by the Unified Court System of New York. Only the U.S. Supreme Court can restore that right. The New York State Judiciary has been cooperating with the Legislature and Executive by enforcing SFL 123-b(1). Since 1992, the Judiciary has dismissed seven of plaintiff Schulz’ lawsuits for lack of standing under SFL 123-b(1). Those lawsuits were filed against the Legislature and the Executive for enacting laws authorizing the incurrence of public debt in spite of specific New York constitutional restrictions.

Plaintiffs’ fundamental First Amendment right to an election free from governmental interference and corruption has been infringed by the N.Y.S. Executive and Judiciary. Only the U.S. Supreme Court can remove that stain and prevent the problem from happening again. On September 11, 1996, in order to sway the results of a statewide vote on Proposition No. 1 (approving Chapter 412), the Governor placed two of his top aids, including his Chief Counsel, on a two-month leave of absence for the expressly stated purpose of creating a political action committee, thereby trading on the credit of the Governor’s office to raise millions of dollars from private corporations that have business before the state or who would benefit from voter approval of Proposition No. 1, all for the purpose of paying for a blanketing of TV propaganda featuring the Governor explicitly exhorting the viewer to "vote ‘yes’ on Proposition 1." The ad was aired repeatedly day after day, for 14 days prior to the election. The ad gave no information about Proposition 1 and was obviously not intended to educate the public about how much debt would be incurred or how the money would be spent if the people approved Proposition 1. No other information was presented by the Legislature or Executive to the public regarding Proposition 1. The sole expression was of the persuasive personality of the Governor, thereby violating the constitutional proscription against undue governmental influence in elections.

Plaintiffs’ constitutional right to have their State judges comply with the provisions of the U.S. Constitution has been taken away by the New York State Judiciary. Only the U.S. Supreme Court can restore that right. Plaintiffs have argued four cases before the N.Y. Court of Appeals where the matter involved a constitutional attack on the incurrence of public debt. In each case the Court of Appeals has failed to address plaintiffs’ First Amendment attack on SFL 123-b(1) only to use SFL 123-b(1) to dismiss plaintiffs’ claims for lack of standing.

Plaintiffs’ right to a State government republican in form and substance and their guarantee of freedom from the making and enforcement of State laws that abridge their fundamental privileges and immunities have been taken away. Only the U.S. Supreme Court can restore those rights.

 

B. THE STATES NEED TO BE REMINDED THAT
THEY ARE LIMITED BY WRITTEN CONSTITUTIONS.

The passage of time produces corruption of principles. It is the duty of good citizens to be ever on the watch against this, and if the gangrene is eventually to prevail, let the day be kept off as long as possible. The primary role of the court, we believe, is to protect the people from the unrestrained acts of the government --i.e., to keep the Legislature and Executive harnessed to the will of the people as expressed in their constitutions.

NY plaintiffs, together with other ordinary, non-aligned citizens, have been degraded from the prime rank, which they ought to hold in human affairs, by a willfully wayward state government that is behaving as if the NY Constitution belongs to it rather than to the people and, therefore, may be disregarded at will.

Plaintiffs’ cause portrays the three branches of their state government as cooperating in the making and enforcing of laws which abridge plaintiffs’ privileges and immunities as both explicitly and implicitly expressed in the United States and New York State Constitutions.

Sovereignty is the right to govern; a nation or state-sovereign is the person or persons in whom that resides. In New York, despite massive misunderstanding, it rests with the people. However, in the practice and even in the science of politics, there has been frequently a strong current in New York against the natural order of things. In New York, which has been denominated free, the state has assumed a supercilious pre-eminence above the people who have formed it.

The state, rather than the people, for whose sakes the state exists, is frequently the object which attracts and arrests the principal attention. This has produced much of the confusion and perplexity, which have appeared in several proceedings and several publications on state politics. Sentiments and expressions of this inaccurate kind prevail in our common, even in our convivial language.

Since the very beginning, the acts of the early national congresses and the acts of the early conventions, including the congress and committees of New York, are replete with expressions with respect to "republicanism" and to the "sovereignty of the people," and the servant nature of governments at all levels. It is to the honor of the United States that in no other country are subjects of this kind better -- or even so well -- understood. One fact stands out: the attention and attachment of the Constitution of the United States and of the New York Constitution to the rights of the sovereign people are discernible, as hard copy, in almost every provision of these documents. It is to be deeply regretted that the constitutional principles which are the cause of action in our lawsuit has not yet received its merited acquiescence and approval as basic principles of governance -- at least, not from New York State’s Legislative, Executive and Judicial branches.

The United States and New York have, in their constitutional language, advocated both the form and substance of constitutional republicanism, with its emphasis on individual rights and governmental responsibility for protecting and enhancing them. Operationally, however, these principles are honored more in the breach than in the observance. There still may be reason to hope that the government of New York, in all three of its branches, may yet perceive the wrongness of actions it has taken, such as interdicting the right of the people to petition their government for a redress of grievances, interfering with the people’s right to a free election unmarred by the intrusion of governmental powers, incurring public debt in spite of constitutional restrictions, using public resources for private purposes and attempting to exempt the government that represents the body of her citizens from that "suability" which alone enables her citizens to assert their individual, fundamental rights and to seek and obtain the protections of their Federal and State constitutions. It is with this hope in mind that we petition this Court.

The people have good reason to be thankful for their valuable liberties and privileges. Nothing but forthright insistence upon the perpetuation of constitutional law and government can insure the continuance and enhancement of their liberties and privileges. Under the circumstances, in New York, the people cannot do this without actions that would threaten their peace and tranquillity. It becomes necessary for the U.S. Supreme Court to apply the rule of law.

 

C. THIS IS NOT A "TAXPAYER ACTION".

Lest anyone argue jurisdiction based on some holding that ours is a generalized rather than a particularized grievance, or that our injury is not concrete or measurable, we say again that this is not a taxpayer action in any respect. We are seeking, inter alia, the protection of the guarantee clause -- not because there is property or money involved but because of our right to a government republican in form and substance.

Allow us to make a comparison that we believe is logical and conclusive. In matters of law it is imperative that logic should prevail.

The federal right to a government republican in form and substance is as absolutely precious to us as the federal right to a government separate from the church is to a person whose interest lies in that area. How precious it is in both cases depends on the knowledge of what is being lost when the Constitution is not being followed. Both viewpoints and value systems and the people who hold them are entitled to equal treatment under the law.

Say a person drives past a town hall on Christmas eve and sees a manger scene, complete with Kings, Wisemen, Joseph, Mary and baby Jesus. Or, that person, of another faith, say, attends a concert at the Schuylerville High School auditorium and is confronted with a massive hand painted mural on the side wall depicting among other biblical scenes, the crucifixion.

That person says, "This is an affront to me." That person expresses a formal complaint to authority because that person has specialized knowledge of the Constitution. That person’s harm falls with the zone-of-interest to be protected by the First Amendment’s Establishment Clause. But, as in our case, that person’s injury is a generalized rather than a particularized injury. Is it concrete or measurable? No! But, that person has standing to maintain his action in court.

We are here because we, too, have a specialized knowledge of the Constitution. We, too, are here because we are subject to ethical and moral imperatives. We, too, are constrained by our knowledge of the U.S. and N.Y. Constitutions and by our devotion to liberty, to freedom from the unrestrained acts of government, to constitutional governance carried out in decency and good order. Republicanism, to us, is a passion that should be judged at the same level of intensity as that portrayed by a vigilant individual seeking redress under the Establishment Clause. In this wise, it is seen that the Establishment Clause and the Guarantee Clause walk hand in hand. Plaintiffs, themselves, have been successful in court in using the Constitution as a shield against governmental behavior which violated the Establishment Clause. In so doing, we did not have to prove the measure of our injury. We are now using the Constitution as a shield against government behavior which violates the Guarantee Clause -- a right at least as fundamental and foundational as the right protected by the Establishment Clause. Yet, in the companion federal case (and potentially, here), our standing is being challenged.

It is apparent that we are, indeed, at the beginning of what may well become a long line of precedents regarding the Guarantee Clause, as has been the case with the Establishment Clause. Because constitutional government, with all that implies, has become so sought after and important and because it establishes performance standards that are being imperfectly met, we can, indeed, expect a cascade of cases under the Guarantee Clause. It follows as the night the day. The body of Establishment Clause cases was allowed to proceed without quantifiable measurable, concrete, particularized harm to the complainant. We perceive ourselves as having the same right. We are offended by what we see happening. We are affronted by a loss of liberty, by an erosion of popular sovereignty. These are as offensive to us as is the use of religion in the wrong place.

The failure of those in authority to adhere to the constitutional principles that bring us to this court is changing the system of governance -- that is, corrupting it in ways that are at once daring and subtle. It is the failure to adhere to our foundational principles of republicanism that allows those who carry out the governance process to begin to assume that they, rather than the people they serve, are the principals – the sovereign. And, because of this, they assume that they are unrestrained, not limited by the written Constitution, and are able to be adventuresome with impunity as with SFL 123-b(1), and with Chapters 412 and 413 and by propagandizing elections.

Our cause in this case is still somewhat novel. The Guarantee Clause has been an infrequent subject of litigation. The application of the Guarantee Clause, with its emphasis on republicanism and the freedom from the unrestrained acts of government, to the acts of the State in a way that is intelligent and forceful rather than emotional and demonstrative, will become as common as the application of the Establishment Clause -- the sole ingredient is knowledge and vigilance.

 

D. THE PEOPLE NEED TO HAVE THE COURT
REVISIT THE GUARANTEE CLAUSE.

Lest anyone argue jurisdiction based upon some holding that early decisions by this court place all questions raised under the Guarantee clause in the realm of political, rather than judicial, considerations, we offer the following:

This case is clearly distinguishable from what some consider to be the dispositive case -- Pacific Telephone and Telegraph Co. v. Oregon, 233 U.S. 118 (1912). In Pacific Telephone the issue was whether an amendment to the Oregon Constitution for direct legislation violated: 1) the provisions of the Act of Congress admitting Oregon to the Union; or 2) Article IV, Section 4 of the U.S. Constitution guaranteeing a republican form of government.

The instant case is distinguishable from Pacific Telephone in at least two ways:

(1) The New York Constitution has never been before the U.S. Congress for review or approval. Unlike Oregon’s, it was adopted long before the Union was formed.

(2) Here, unlike Pacific Telephone, plaintiffs are not asking the Court to decide which of two State governments is the legitimate State government. In Pacific Telephone the court was asked to decide if the state government that existed in Oregon by act of Congress, and before its citizens added the citizen initiative and referendum amendment to the State Constitution in 1902, was the legitimate state government; or, if the government that existed under the Oregon Constitution as amended in 1902 was the legitimate government. The Pacific Telephone court made clear its view that if it found that the Oregon State Constitution, as amended in 1902, was violative of Article IV, Section 4’s guarantee clause, the validity of every statute passed on Oregon since the adoption of the initiative and referendum amendment to the State Constitution would be affected, and ultimately, the question of whether there was a legislative and judicial branch in Oregon would have to be answered. The court decided the matter was purely political and would have to be decided by Congress. It is interesting to note that the court went to great lengths to show how its decision was so conclusively established by a prior decision of the U.S. Supreme Court "as to cause the matter to be absolutely foreclosed." The court said the controlling case was Luther v. Borden, 7 How. 1, 12 L Ed 581, which the court said grew out of the Dorr Rebellion in Rhode Island. In Luther the court was asked to decide which of two state governments was the legitimate government: the government which grew out of a voluntary constitutional convention or the "Charter government." In Luther the U.S. Supreme Court found that to select the former would nullify all the laws, taxes, salaries and court judgments -- a disastrous effect. In the instant case the issue is not which of two State governments is the legitimate government but whether the State is acting legitimately -- observing the republican principles upon which the State government was founded. The question in the instant case is not a political question. Plaintiffs are not asking the court to decide which of two state governments is the legitimate government. Plaintiffs are asking the court to rein in the legitimate state government in New York which is "willfully wayward" in that it is violating the basic republican principles of popular sovereignty, government based on the consent of the people, and "separation of powers," provided by both the U.S. and N.Y. Constitutions. In Pacific Telephone, the court ruled that the question before it was "purely political." It said, "Its essentially political nature is at once made manifest by understanding that the assault which the contention here advanced makes is not on the tax as a tax but on the state as a state. It is addressed to the framework and political character of the government by which the statute levying the tax was passed. It is the government, the political entity, which is called to the bar of this court, not for the purpose of testing judicially some exercise of power, assailed on the ground that its exertion has injuriously affected the rights of an individual because of repugnancy to some constitutional limitation, but to demand of the state that it establish its right to exist as a state, republican in form." Pacific Telephone & Telegraph Co. v. Oregon, 233 U.S. 118, 150 (1912). (Plaintiffs’ emphasis). Obviously, the case before the bar is distinguishable from Luther v. Borden, 7 How. 1, 12 L. Ed 581, and its prodigy, including Pacific Telephone & Telegraph Co. v. State of Oregon, 233 U.S. 118 (1912). Here, plaintiffs are calling the government of New York State to the bar for the purpose of testing judicial attitudes regarding the exercise of power, which is being assailed on the ground that its exertion has injuriously affected the rights of citizen plaintiffs because of repugnancy to certain constitutional limitations. Unlike plaintiffs in Luther and Pacific Telephone, plaintiffs here are not in court to demand of the state that it establish its right to exist as a state.

 

E. IN THE INTEREST OF JUSTICE, IT IS THE RIGHT THING TO DO.

Reports are beginning to appear in the national press that the governments of states other than New York are also becoming "innovative and monarchical" in their attempts to circumvent the debt-limiting restrictions of their State Constitutions. The question of "willfully wayward" states can only be addressed effectively by this tribunal.

We know that the conclusions of leading thinkers and analysts on government and the "rights of man" -- present and long past -- harmonize with the principles which underlie and defend our argument on the questions now before the Court in this petition for a writ of certiorari related to the lawsuit which is the cause of this petition.

The extension of the judicial power of the United States Supreme Court to the controversy of this lawsuit appears to be wise, because, in the thoughts and words of the earliest members of this court, it would be "both honest and useful."

It would be honest because the Court, in its political unassailability, provides for the doing of justice without respect to persons, and for making individual citizens, as well as the States, secure in their respective rights. It would fulfill the promises which a free government makes to every free citizen -- the promise of equal justice and the protection of the laws; the promise of due deference to the sovereignty of the body of the people; and, the promise of due allegiance to the design imperatives -- the need to maintain a separation between and among the powers of governance: legislative, executive and judicial, and the need to acknowledge that government derives its just powers from the consent of the governed and are, indeed, limited by written Constitutions.

It would be useful for several reasons: because it would leave not even the least of its citizens without the means of obtaining justice from the State; because it would obviate the need for occasions of contests and violent quarrels between the citizens and their State due to the arising of claims that the design imperative principle of "a State government republican in form and substance" (with all that that statement includes and implies) is being or has been abandoned; because it would rest on the great moral truth that justice is the same whether due from one man to a million or from one million to one man; because it would teach and greatly enhance the value of our free republican form of government which places all persons on an equal footing and enables all to obtain justice without regard to the power or number of their opponents; because, based on the great principle that the great body of the people is the true sovereign of their States and of the nation; and, because, consequently, individual citizens are not to be degraded or penalized for appearing with each other in their own courts to have their controversies resolved.

What we intend to argue is, essentially, that citizens, in our constitutional system, have an inalienable right to have a State government that is republican in form and substance, through the structures and processes of which governance is provided, but only with the consent of the governed, and that, in New York State, these principles -- the "design imperatives" -- are being violated when: (1) the branches of government -- Legislative, Executive and Judicial -- which are designed to serve the people and to be independent elements in a system of checks and balances, combine to work together in obvious harmony to achieve private or political ends that neither (a) exhibit compliance with the constitutional requirement for their own independence in thought and action, nor (b) result in demonstrable achievement of the public benefit and good; and (2) when citizen grievances (which would seem to indicate a measure of non-consent) are denied access to the judicial decision-making process in key public-debt issues, in obvious violation of the fact that any citizen has the constitutional right to petition the government for a redress of grievances, especially those that are rooted in the State Constitution.

Assuming that the foregoing are "givens," we are petitioning the Supreme Court of the United States of America, to review this matter, which finds itself at the root of the constitutional design-imperatives being violated, as set forth above, and to admit this petition for a writ of certiorari based upon the principle set forth in one of the earliest dicta of the U.S. Supreme Court that, when an aggrieved citizen of a State, finding himself with no other recourse to achieve the redress of grievances that are based upon constitutional rights and the need for interpretation thereof, the appropriate court of jurisdiction is the U.S. Supreme Court. See Chrisholm Ex’r v. Georgia, 2 Dall. 415, 1 L.Ed. 440.

Additionally, as petitioners we are seeking, for ourselves and for the citizenry of New York State, in general, a measure of simple justice, based on the cardinal principle that "justice is justice" – whether it is meted out to one man or to a million, to one person or to a "body" of persons. On the other hand, it should be noted that the existence of injustice does not have to be recognized by all members of a body afflicted by it, in order for it to "be" injustice. Indeed, it is an historical fact that the fathers of this country and the designers of the great doctrines and principles that have shaped its development, were led by one or two perceptive individuals who recognized the degree to which the injustices of despotism were being visited upon the people, and wrote major documents that exposed them as violations of the natural laws -- the "rights of man" -- that underlie and shape the basic doctrines -- the constitutions and statutes that frame and preserve our system and our society, today.

The pursuit of justice, in fulfillment of the constitutional design-imperatives expressed above (the right to have a State government republican in form and substance, that is subject to the consent of the governed, and the right of the governed to petition their government for a redress of grievances) is the rationale behind this petition, based upon the types of constitutional inconsistencies perpetrated by the State of New York -- injustices that obviously demand the attention of the U.S. Supreme Court.

DATED: September 5, 1998