Rudder v. Pataki

Mercure, J. (dissenting).

We respectfully dissent. In our view, Supreme Court was correct in its summary rejection of defendants’ threshold challenges to justiciability and standing but erred in its on-the-merits determination to dismiss the complaint. We conclude that Executive Order No. 20 (9 NYCRR 5.20 [hereinafter the executive order]) constitutes an unprecedented and legally impermissible usurpation of administrative agencies’ traditional rulemaking authority in favor of a select group of gubernatorial appointees and that it should be struck down as violative of the doctrine of separation…