Pork Lawsuit Motion for Reargument (Please Forward and Post!)

[Note: this motion is to be submitted for decision on January 23, 2012.]

Court of Appeals of the State of New York



The STATE OF NEW YORK, et al.,

Brief of Appellants for Reargument

December 21, 2011


1. Should the Court grant reargument because it overlooked or misapprehended the legal points outlined herein.

Proposed answer: Yes.


This motion for reargument is the last plausible means by which to salvage 137 years of herculean effort by the People of the State through their Constitution to ban “legal robbery” of their money by greedy business firms working in alliance with corrupt politicians. [Quote from Mayor Opdyke cited in Plaintiff’s brief at 19] If this motion fails, the mind boggles while pondering what options remain to end this evil practice.

The reason for the constitutional amendment initially was that the Legislature was giving away the people’s money to special interest groups. However corrupt and unresponsive the Legislature was in 1874, the reality in 2011 is that it would be impossible for average citizens to persuade today’s Legislature to abolish corporate welfare. Corporate welfare is in many ways how they finance their campaigns and maintain power.

The notion of voting them out is naïve. Their re-election rate is absurdly high. Every intelligent observer knows that the political system in New York is rigged to protect and re-elect incumbents. In fact, there is evidence in the complaint in this case that legislators received legalized “kick-backs” from corporate grantees in the form of campaign donations. [Record at 36-37] How can citizens defeat legislators who violate the Constitution and thereby get a kick-back to buy the critical TV ads that guarantee their re-election?

The notion that citizens should respond to this Court’s decision by amending the Constitution, is preposterous. The People already amended the Constitution to ban corporate grants. Any further attempt to ban corporate grants using plain language could be overridden by court decision as the present effort was on November 21st. And, obviously, having lost in the State’s highest court on a pure issue of state law, the courts would be foreclosed to us if this motion is denied.


The defendants said very little about the legislative history of the gift clause until the State discussed it in a very tendentious manner in their brief filed with the Court of Appeals. Unfortunately, the Court was apparently influenced by this stilted review in their recent opinion. The Court discusses the ban on gifts of credit passed in 1846, briefly mentions the ban on cash gifts passed in 1874 and dwells on the 1938 retention of the ban on cash gifts.

Contrary to the Court’s opinion, there is zero evidence of a major change in the law in 1938 and there is zero evidence that the ban on gifts to private firms was narrowed in 1938. On the contrary, it appears that the Constitution was merely clarified in accordance with the previous understanding that State credit could not be given to any public agency but that State money could go to public entities. This is hardly the gift clause upheaval the defendants portray as providing the basis for wiping out the 137 year old gift clause.

Furthermore, the words “or in aid of,” which plaintiffs deem critical to the case, were carried over from the original gift clause of 1846! A plain reading of those words, in the spirit of reconciling the various elements of the newly constructed clause (See McKinney’s Statutes, §98), directly contradicts the assertion of the defendants that the exclusion of “public corporations” from the ban on gifts of money was meant to erase 137 years of constitutional efforts against economic development subsidies.

The legislative history from the time is startling in that it directly contradicts the defendants’ position. It is also startling that the defendants, who have at their disposal virtually unlimited legal resources, never brought the Court’s attention to this vital legislative history.

“It has long been settled by custom that insofar as the giving of money is concerned the term “corporation” means private corporation. The State frequently gives its money to authorities and, of course, all State aid appropriations are given in aid of municipal corporations. To clarify and settle the meaning of the word “corporation” as used with respect to gifts or loans of money, the committee urges that the term be qualified by the word “private.” . . . On the other hand, custom has long established that the word “corporation” as used in connection with the gift or loan of credit has meant all corporations, of a governmental as well as private character. This was the position taken by the Governor in his annual message to the Legislature on January 6, 1937. To remove any doubt which may exist and to make the existing language conform to such meaning, the committee has in Section 1 or Article VII inserted before the words “association or corporation” the words “public or private,” which adjectives qualify both nouns. But, even were this not the correct interpretation of the existing language, the committee believes that this is the limitation which should prevail. If corporations were here defined as only private corporations, by immediate implication the State credit could be given or loaned to every municipal or other public corporation. If cities found themselves in difficulties, or if an authority were unable to sell its securities, they could rush to the State for assistance. One or two such instances might do no harm, but a general use of the State credit in this manner would dissipate the State’s credit and demolish the strongest foundation of our State’s financial structure. The committee feels strongly that the State’s credit should be reserved for the use of the State only, with only such exceptions as may be specifically set forth in the Constitution.” Journal and Documents of the New York State Constitutional Convention [1938], Appendix 3, Doc No. 3, at pp. 5-6).

This explanation directly contradicts the defendants’ position that there was a major constitutional upheaval in 1938. On the contrary, the law was clarified to go along with the prevailing understanding and practice. Noticeably absent in the legislative history is any desire to open the floodgates to massive subsidies to private firms for economic development. Because the Court had before it an incomplete picture of the 1938 legislative history, the motion for reargument should be granted.

This review of the 1938 legislative history explains why the 1967 convention felt the need to amend the Constitution to allow grants for corporate welfare and to allow grants to public corporations which would in turn make grants to private firms. This attempt was rejected by the voters. If the ruling of this Court on November 21st is allowed to stand, this Court will have done something beyond its constitutional authority—overturn the will of the People expressed at the polls in 1967. In American constitutional theory, the people, not the courts, are sovereign.

The Court did not fully explain why the 1874 ban was passed. In its brief discussion, the Court fails to mention the main reason for the ban: the belief of the drafters, quoted at length in plaintiff’s brief, that taxing people to give their money to business firms is “legal robbery.” The Court fails to cite any evidence that the Convention of 1938 or, more importantly, the voters, chose to re-legalize legalized robbery by allowing the state to launder money through public corporations.


Throughout the litigation, the defendants said little about the legislative history of the gift clause. Finally, in their brief to the Court, the State broke its silence. They stated that the “particular” concern was aid to “private and charitable and religious institutions.” [p. 17] While there was a debate over sectarian giving, to suggest that it was the main concern that led to the ban on cash grants is misleading and did not provide the Court with a complete picture of the legislative history.

Throughout their argument, the defendants attempt to separate the gift clauses of 1846 and 1874. However, they are genetically linked. First, the language “in aid of” dates from 1846. Second, one of the chief motives for the ban on grants in 1874 was that the State was evading the ban on gifts of credit by giving cash leading to the very same fiscal problems. Report of the Committee on Health, Housing and Social Services, Document No. 35, p. 2, Constitutional Convention of 1967. Thus, the clause of 1874 simply continued the movement started in 1846 against subsidies to private firms for economic development.

Because the State defendants did not give the Court a complete picture of the legislative history of the ban on grants, reargument should be granted. Only by failing to take account of the actual purpose of the ban on grants can the Court hold implicitly that economic development is a proper public purpose authorizing the State and the State’s authorities to provide grants to private firms.


At oral argument, plaintiffs’ counsel argued that the words “in aid of” forbade the use of money laundering through a public authority to evade the ban on subsidies. [22:00] On rebuttal, counsel for the State dismissed that argument, stating, “…the history that led to that phrase is that sometimes what the State was doing was actual work, surveying, spending money in aid of the railroads…” [35:00] We have searched for any legislative history on the purpose of that phrase and found none. Nor did any defendants cite any legislative history concerning that critical term. How then did counsel for the State suddenly develop her insight as to the origin of that phrase? We trust a relevant citation will be forthcoming in the State’s response. If not, reargument should be granted since that phrase is of critical importance to the case.

Legislative history aside, counsel’s assertion makes no sense since the language “in aid of” was contained in the original gift clause of 1846 that barred only the provision of credit and not “work” or “spending money.” Gifts of money were not barred until 1874, 28 years later.

The plain language of the words “or in aid of” must be given meaning in applying the entire clause. McKinney’s Statutes, §94. These are short, plain words and their overall meaning is plain and clear. In addition to barring gifts to private corporations, the gift clause through these words also bars assistance rendered in any other way including indirectly through public authorities.


In its opinion, the Court implies that the plaintiffs have a mere policy disagreement which should be taken up with the Legislature and Governor. [p. 13] On the contrary, it is the defendants and the Court at oral argument that interjected matters of policy into the case. In its Brief, the State defendants threatened that economic disaster would ensue if the Court enforced the gift clause. [p 2] However, it is not the job of the Court to weigh the consequences of enforcing the Constitution. As noted in the plaintiff’s brief and at oral argument, all such policy matters were discussed and resolved at the various constitutional conventions and by the voters who ratified the various proposed constitutions and amendments, or, as in 1967, rejected a proposal to legalize corporate grants and grants to public corporations for economic development.

In our submissions and at oral argument, plaintiffs did discuss the policies underlying the gift clause. This was (1) to aid the Court in interpreting and applying the gift clause to the present facts and (2) to emphasize that the framers had already anticipated and rejected the various spurious policy arguments made by the defendants. We have never based our case on policy arguments and the fact that the Court appears to think we did is yet another reason to reargue the case.

Now, let us examine the chain of reasoning that the Court used to arrive at the conclusions that startled two of its colleagues. We will see that the majority used pure judge-made law to override the clear words and intent of the Constitution. Early on in the opinion, the Court lays out its judicial philosophy of “deference involving ‘public funding programs essential to addressing the problems of modern life….’” [page 4, citing Schulz I, 84 NY2d at 241]. First of all, this is judge-made law as this principle of deference is not in the text of the Constitution. Second, the Court’s argument begs the question by assuming as true that which is in dispute: that free-wheeling government spending is in fact good for modern life.

Third, we could have an interesting debate at a law school seminar about the wisdom of this judge-made law in a state and nation whose governments have chronic and severe fiscal problems due to overspending. But that would merely be matching our own policy predilections against the Court majority’s. The point here is that this policy debate, in the context of corporate grants for economic development, already occurred at the various constitutional conventions and general elections which enacted strong and specific bans on such “public funding programs.”

Moreover, this debate was revisited in the 1960’s, the high water mark for judicial liberalism. In that debate, proponents of lavish public funding programs for economic development urged a change in the law using language eerily similar to that used by this Court as the ultimate premise for its dismissal of the plaintiffs’ lawsuit:

“The broad purpose and intent of Proposition 1372-B is to provide the state Legislature with the tools required to meet the essential needs of the last third of the 20th Century. In a period of expanding governmental activities, it is axiomatic that the Legislature be able to meet and overcome the challenges of our time. Today’s problems cannot await tomorrow’s solution, and the present limitations on state and local government were devised in an age when less was demanded at every level.” Report of the Committee on Health, Housing and Social Services, Document No. 35, p. 5, Constitutional Convention of 1967.

While this is an eloquent (and naïve and dated) expression of judicial liberalism, the voters in 1967 rejected the proposed Constitution that embodies that philosophy in its proposed clause legalizing corporate welfare. Thus, for the Court majority to base its holding on a philosophy they hold but which was rejected by the voters demonstrates that it is the Court, and not the plaintiffs or the dissenters, which has based its position on matters of personal philosophy and policy preferences. That being the case, reargument should be granted.


There is serious gap in the logic of the Court’s decision that provides another ground for reargument. The Court concludes that the State may provide funds to public corporations “for a public purpose.” [page 9] The Court doesn’t even make an effort to argue that economic development is a public purpose since giving cash for economic development has been illegal since 1874. The Court in fact provides two citations in support of its view, neither of which shows that economic development grants fulfill a public purpose. Schulz I at page 244 speaks of “public works projects” but not grants to private firms. Neither do the two pages of legislative history cited by the Court at page 11 endorse economic development grants to private firms. Thus, the Court has provided no basis for holding that economic development of the kind complained of here is a public purpose in New York State. In fact, it is not, having been explicitly rejected as such from 1846 through 1967.


The Court overlooked a critical argument by the plaintiffs. If the 1938 amendment allowed the state to give money to a public authority for transfer to a private firm for economic development, it would not have been necessary for the Constitution to be amended in 1961 to allow exactly that to occur. See, Article 7, Section 8, paragraph (3). In 1938 itself, yet another exception to the gift clause that reinforces the general rule, was enacted to allow subsidies for low income housing. Article XVIII.

Here, it is essential to apply well-known and long-standing principles of interpretation:

• All parts to be construed together. McKinney’s Statutes, §97.
• All parts to be harmonized and given effect. McKinney’s Statutes, §98
• Statutes will not be construed as to render them ineffective. McKinney’s Statutes,
• Every word to be given effect. McKinney’s Statutes, §231
• Expression of one thing as excluding others. McKinney’s Statutes, §240.

Taking these principles together, they clearly point to the conclusion that explicit exceptions to the general rule exclude other exceptions not stated. If not, the exceptions themselves are rendered pointless and not “given effect.”

Application of these principles negates both parts of the Court’s opinion. Obviously, the limited exception carved out for loans to a public corporation to in turn make loans to private firms excludes all other instances of state aid to public corporations for transfer to private firms. Moreover, the authorization of loans for economic development serves to exclude other forms of state aid for economic development. Yet, the Court has apparently sanctioned any and all forms of grants and loans for economic development outside the confines of subdivision three. However, the expression of one thing excludes others.

The fact the Court failed to apply well known principles of interpretation is yet another ground for reargument.


It is a well-established principle that the Constitution may not be evaded by indirect means. People ex rel. Burby v Howland, 155 NY 270, 280 [1898]; see also Wein v State, 39 NY2d 136, 145 [1976]). Let’s leave aside the fact that the gift clause by its own words forbids that it be evaded by indirect means (“or in aid of….). See Points I and II, above. The Court, however, never explained why this principle does not apply to this case. This sub silentio repeal of the principle is fraught with peril for there is hardly any clause in the Constitution that could not be evaded by clever legislation or creation of an authority. Burby v Howland, supra at 280-280, eloquently explains the reason for this principle:

“When the main purpose of a statute, or of part of a statute, is to evade the Constitution by effecting indirectly that which cannot be done directly, the act is to that extent void, because it violates the spirit of the fundamental law. Otherwise the Constitution would furnish frail protection to the citizen, for it would be at the mercy of ingenious efforts to circumvent its object and to defeat its commands.” (Emphasis added.)

This passage, written in 1898, is a prophetic warning about the ingenious attempt, so far successful, that began in 1968, to eviscerate 137 years of effort to ban corporate subsidies in New York State. The fact that the Court’s decision threatens to erase this important principle from the State’s jurisprudence is yet another reason to grant reargument.


The ban on cash grants to private firms was passed in 1874 but its history goes to back even further to 1846. It has been amended eight times but never repealed. It survived an effort at repeal in 1967. This clause was “judicially repealed” by this Court in a discussion that lasted exactly two and a half pages [pp. 11-13] and which relies essentially on one case that did not involve the State giving cash grants to economic development but a local government leasing “property,” a ban not even contained in the state gift clause at Article 7, Section 8. To the extent that Murphy is being used to judicially amend the Constitution, it should be overruled. (Since Murphy is not a gift case at all, but a lease case, the plaintiffs had no reason to ask the Court to overrule it in our initial brief on appeal.)

The Constitution bans gifts to private firms regardless of their purpose. In reading a public purpose exception into the gift clause, the Court is overthrowing the constitutional ban on its own nonexistent authority and also explicitly overruling three of its own cases that state that gifts are banned regardless of their purpose. People v. Westchester County Bank, 231 NY 465 (1921), Schulz v. McCall, 86 NY2d 225 (1995) and People v. Ohrenstein, 77 NY2d 38 (1990). To add insult to injury, the Court validates economic development grants by citing as a valid public purpose one that the gift clause was designed to categorically forbid. The gift clause now means, pending reargument, the opposite of what it says and the opposite of its intended meaning.


As noted or implied throughout this brief, the Court on numerous occasions overlooked or failed to apply well-known and long-established principles of interpretation. This is another ground for reargument.

• Avoidance of judicial legislation. McKinney’s Statutes, §73. See Point IV, above.
• Statutes too clear for construction. McKinney’s Statutes, §76. See Point V, above.
• Intent determined from language used; natural and obvious meaning. McKinney’s Statutes, §94. See Points I and VIII, above.
• Consideration of the mischief to be remedied. McKinney’s Statutes, §95. See Points I and IV, above.
• All parts to be construed together. McKinney’s Statutes, §97. See Points I and VI, above.
• All parts to be harmonized and given effect. McKinney’s Statutes, §98. See Points I and VI, above.
• Statutes will not be construed as to render them ineffective. McKinney’s Statutes, §144. See Point VI, above.
• Every word to be given effect. McKinney’s Statutes, §231. See Point VI, above.
• Expression of one thing as excluding others. McKinney’s Statutes, §240. See Point VI, above.


The Court has overruled Judge Andrews’ brilliant opinion in People v. Westchester County Bank, supra, the text of the constitution, numerous constitutional conventions that retained the essence of the gift clause, and the election of 1967. The Court has indeed done something it had no legal, moral, or political right to do, or practical reason to do: “judicially amend the” Constitution. Bordeleau v. State of New York, Court of Appeals, November 21, 2011 (Judge Smith dissenting).

If plain words can be twisted or even ignored in service of misguided policy notions to mean the precise opposite of their original meaning, there is no point to having written constitutions at all except to create the illusion that the people control the government and not the other way around.

We urge the Court in the strongest possible terms to reconsider its ruling. We sincerely believe the fate of constitutionalism in this State rests on the Court’s decision on this motion.

The People of the State of New York have never needed the Court of Appeals more desperately to stand up to the executive and legislative branches of government and tell them: forty-three years of illegally “robbing” billions of dollars from the taxpayers must end now!

Dated: Buffalo, New York
December 21, 2011

Attorney for Appellants
63 Newport Ave.
Buffalo, New York 14216
(716) 435-8918

6 thoughts on “Pork Lawsuit Motion for Reargument (Please Forward and Post!)”

  1. Proud to be a petitioner in this history action. The rule of law is at stake. All NYS residents should pressure your representatives to condemn the Court of Appeals decision.

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