Justice Brigantte-Hughes' March 8, 2007 decision    in the original

Plaintiffs' March 14, 2007 notice of appeal

Plaintiffs' March 14, 2007 appeal brief

Plaintiffs' March 29, 2007 motion in support of expedited appeal, preliminary injunction   &  Plaintiffs' March 29, 2007 memorandum of law in support of expedited appeal, preliminary injunction

Appellate Division, First Department's June 19, 2007 affirmance, by Justices Friedman, Nardelli, Buckley, Sweeny, & Malone    

Court of Appeals' September 6, 2007 decision, dismissing appeal of right, "sua sponte, upon the ground that no substantial constitutional question is directly involved"

Plaintiffs' September 20, 2007 motion for leave to appeal to the Court of Appeals

pp. 2-3:  "...a type of legislative delegation never before seen in this State....
   Though temporary commissions have occasionally been used in the past to develop recommendations for consideration by the Legislature, never before has a temporary commission been empowered with the authority to make determinations that take on the force of law without any action taken by the Legislature..."

p. 4:  “in clear violation of this Court’s clearly articulated separation of powers jurisprudence.” 

p.14-21:  “The Appellate Division erroneously upheld the constitutionality of the Enabling Legislation on the basis of two related findings: (1) that enabling statutes ‘broader’ than the Enabling Legislation have been upheld and (2) that the Enabling Legislation articulates a meaningful policy choice… The first one,…merits brief discussion at the outset because it echoes the deeply misleading contention, repeated by Defendants-Respondents throughout this litigation, that the Enabling Legislation is an unremarkable, run-of-the-mill administrative delegation, of the type routinely engaged in by the Legislature. 
         To the contrary, the Enabling Legislation represents a type of legislative action that has never before been attempted in this State and never been endorsed by this Court.   In creating this novel type of delegation, the Legislature departed radically from the well-established role of temporary commissions in this State – that of presenting genuine recommendations to the Legislature for debate and approval. 
         Prior to the Enabling Legislation, unelected, temporary commissions in this State had uniformly been empowered only to present their ‘recommendations’ to the Legislature for a vote. …
         Even subsequent to the Enabling Legislation, temporary commissions in this State have been tasked with making recommendations, not enacting mandatory laws. …
          Recognizing that the Enabling Legislation is a type of legislative act never before seen in New York, Defendants-Respondents have relied on a federal commission – created pursuant to a federal statute and found to be constitutional under the United States Constitution – as the sole precedent for their assertion that the Enabling statute is a routine delegation. …However, this misguided comparison is not only irrelevant to a separation of powers analysis under the New York State Constitution ^fn4 – it also underscores the complete lack of precedent in this State for the vesting of lawmaking authority in a temporary commission.  This Court has never addressed or considered the constitutionality of this type of legislative action.  
           If the Enabling Legislation is permitted to stand unreviewed by this Court, it will create a new template by which the Legislature can avoid accountability for politically difficult decisions affecting fundamental policy questions in this State.  Using this type of legislation, the Legislature will be able to outsource its policymaking responsibilities to a temporary commission, answerable to no one, but with final authority over difficult policy issues, and in so doing, divest itself of responsibility for the commission’s ‘recommendations.’”

October 3, 2007 motion by the Association of the Bar of the City of New York to file an amicus curiae brief in support of plaintiffs-appellants' motion for leave to appeal  -- moving affirmation: see para 2: 

 "...The question for which plaintiffs-appellants seek leave to appeal...is an important one...to our democratic institutions generally.  The 'legislation by inaction' model created by the Enabling Legislation L.2005, ch.63, Part E..., and the embedded potential for error or abuse in that paradigm, should not be allowed to supplant constitutionally mandated decision making by the Legislature.  The question for which plaintiffs-appellants seek leave to appeal must be carefully reviewed now because it will recur in other contexts if approved here."

-- City Bar's amicus curiae brief, October 3, 2007    

 

*   *   *
THE OTHER SIX CHALLENGES
TO HEALTH FACILITIES STATUTE
-- to enjoin and/or invalidate the commission and/or its recommendations

From Erie County

St. Joseph Hospital of Cheetowaga, New York and Catholic Health System, Inc.
v.
Antonia Novello, as New York State Health Commissioner, New York State Commission on Healthcare Facilities in the 21st Century, and George E. Pataki, as governor of the Stte of New York, and the State of New York
(Index # 11568/06, Erie County)

Supreme Court, Erie County Justice Joseph Mintz' February 2, 2007 decision

Appellate Division, Fourth Department's July 18, 2007 decision by Justices Centra, Scudder, Lunn, and Peradotto -- with dissent by Justice Fahey, who would have held the statute unconstitutional

Court of Appeals' November 27, 2007 decision, dismissing appeal, of right, "sua sponte, upon the ground that no substantial constitutional question is directly involved."

Court of Appeals' February 12, 2008 decision denying leave to appeal "with one hundred dollars costs and necessary reproduction disbursements."

 

From Albany County

William E. Scheuerman, Individually and as President of United University Professions; United University Professions, and Dr. Umeshandra Patil
v.
State of New York, Eliot Spitzer, as Governor of the State of New York; Department of Health of the State of New York; Dr. Richard Daines, Individually and as Commissioneer of Department of Health of the State of New York; Maryanne Gridley, Individually and as Executive Director of the Dormitory Authority of the State of New York; Commission on Health Care Facilities in the 21st Century, Stephen Berger, as Chair of the Commission on Health Care Facilities in the Twenty-First Century (Defendants) and State University of New York; John R. Ryan, as Chancellor of the State University of New York; the Board of Trustees of the State University of New York; Thomas F. Egan, as Chairman of the Board of Trustees of the State University of New York; the State University of New York Health Science Center at Syracuse; Dr. David Smith, as President of the SUNY Health Science Center at Syracuse, and Vrouse Hospital, d/b/a Crouse Hospital (Permissive Party Defendants)
(Index #2474/07, Albany County)

 

From Oswego County

The Albert Lindley Lee Memorial Hospital
v.
The Commissioner of the New York State Department of Health; the New York State Department of Health; Eliot Spitzer, as Governor of the State of New York; and the State of New York
(Index #07-0509, Oswego County)

 

From Albany County, also

Danny Donahue, Individually and as President of the Civil Service Employees Association, Inc., Local 1000; AFSCME, AFL-CIO; Civil Service Employees Association, Inc., Local 1000; AFSCME, AFL-CIO; Hellen Czerwinski; David Quimby; Ralph Sorrentino, and Barbara L. Taylor
v.
Richard F. Daines, as Commissioner of the New York State Department of Health; New York State Department of Health; Eliot Spitzer, as Governor of the State of New York, and State of New York
(Index #  , Albany County-Article 78)

From Westchester County

Community Hospital at Dobbs Ferry
and St. John's Riverside Hospital
v.
Antonia C. Novello, as Commissioner of the New York State Department of Health; the New York State Commission on Healthcare Facilities in the 21st Century; Stephen Berger, as Commissioner of the New York State Commission on Healthcare in the 21st Century; George E. Pataki, as Governor of the State of New York, and the State of New York
(Index #24650, Westchester County)

From Albany County, again

Cabrini Medical Center
v.
Antonia C. Novello, as Commissioner of the New York State Department of Health; the New York State Commission on Healthcare Facilities in the 21st Century; George E. Pataki, as Governor of the State of New York, and the State of New York
(Index #9015, Albany County)

 

 

--------------

November 29, 2006 "Albany Weighs Risks of Health Care Plan"
New York Times (Michael Cooper)

November 29, 2006 "Plan Could Close 20 or More New York Hospitals"
New York Times (Richard Perez-Pena)

November 29, 2006 "Staff Members, Lawmakers, and Patients Protest State's Proposed Hospital Closings"
New York Times (Timothy Williams)