Jurists Protect the State and Ignore the Constitution

The Intellihub
November 28, 2011

Editors Note: This is the last of a three part series that covers the “Pork Lawsuit”. Read the other essays, Slaying the New York State Pork Dragon and How to Lick the Budget Deficits

When it comes to the meaning of language, the courts are the greatest purveyor of trickery, distortion and perverted interpretation. These illegitimate gatekeepers for corrupt government, are authorized assassins, appointed to bring legal cover to Just Us; namely the State. Justice for the people is more than collateral damage for the few; it is systematic denial for the many.

The recent Court of Appeals decision that shreds the NYS Constitution in the Pork Lawsuit proves that the rule of law is a charade. The court’s codified endorsement for official money laundering, demonstrates that the practice of the law is nothing more than enabling the criminal syndicate of the political class.

The actual words from the Court of Appeals decision, proves the relevance of this assessment.

The majority five jurist’s opinion stated.

In 1846, the voters of the State of New York amended the Constitution to prevent the giving or lending of the State’s credit to private corporations (see Wein, 39 NY2d at 143-144; see also People v Ohrenstein, 77 NY2d 38, 50 1990]).

The 1846 Constitution, however, did not bar gifts of State money because, as this Court recognized over a century later, the granting of state money was a one-time event that “does not bind future generations or create the same dangers of collapse, insolvency and crisis associated with the abuse of credit” (Schulz I, 84 NY2d at 246).

Nevertheless, the constitutional prohibition was later expanded in the 1874 Constitution to preclude the giving and lending of public money to aid any private entity or undertaking (see Ohrenstein, 77 NY2d at 50 [“Neither the credit nor the money of the State shall be given or loaned to aid or in aid of any association, corporation or private undertaking”] [former art VII, § 9]).

The purpose of that amendment was to prevent the State’s practice of freely granting “public funds to railroads and to charitable associations” (People v Westchester County Natl. Bank of Peekskill, N.Y, 231 NY 465, 474 [1921])

More than 60 years later, the Constitutional Convention of 1938 combined the two separate provisions dealing with gifts or loans of State money and credit into article VII, § 8(1). The 1938 Constitution also amended the scope of the prohibition against giving or lending the State’s credit, for the first time making it applicable to public corporations (see Wein, 39 NY2d at 144 [explaining that the newly broadened credit provision “was intended to protect the State from the uncertain and possibly disastrous consequences of incurring future contingent liabilities easy for a current generation to project but a burden on future generations”]).

The 1938 Constitution, however, did not extend the prohibition against the giving or loaning of the State’s money, which continues to apply only to private recipients.

Article VII, § 8(1) of the State Constitution broadly declares, in relevant part, “[t]he money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking; nor shall the credit of the state be given or loaned to or in aid of any individual, or public or private corporation or association, or private undertaking.” This provision contains two separate prohibitions:

first, it precludes the State from giving or loaning “money” to private recipients and,

second, it more broadly forbids the State from giving or lending its “credit” to private recipients or public corporations. Hence, while the State may not lend its credit to a public corporation, such as the UDC, nothing in article VII, § 8(1) prohibits the State from adopting appropriations directed to such public entities.

With an apparent goal to “insulate the State from the burden of long-term debt,” the Legislature, beginning in 1921, created “legally separate public benefit corporations, known as public authorities, to discharge particular functions” (Schulz I, 84 NY2d at 244).

It is well settled that “public benefit corporations exist independently of the State” (Schulz I, 84 NY2d at 246).

Concurrent with their status as entities separate from the State, the ability of public authorities and public benefit corporations to receive public funds was acknowledged in Matter of Dormitory Auth. of State of N.Y. (Span Elect. Corp.) (18 NY2d 114 [1966]).

The two brave jurists that denounce this ruling deserve your respect.

Eugene F. Pigott, Jr. (dissenting):

Unconstitutional acts do not become constitutional by virtue of repetition, custom or passage of time. But that is what the majority opinion holds today. The arguments made by these defendants are precisely the kind of claims that sully taxpayers’ view of our State government.

It is unfortunate that the majority gives credence to those arguments and, as a result, deprives these plaintiffs – 50 New York State taxpayers who are attempting to exercise their right to air their grievances – of an opportunity to conduct the most basic discovery to support their claims.

Far from being complex, article VII, § 8 (1) of the State Constitution (the Gift Clause) explicitly forbids what plaintiffs claim the State defendants are doing in this case. It states:

“1. The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking;” (emphasis supplied).

In 1967, the voters rejected a proposed amendment to the state constitution that would have allowed the distribution of funds to private businesses for the purpose of economic development in the same manner the ESDC is distributing funds now.

The proposed (and subsequently rejected) amendment stated as follows:

“The state, any local government and any other public corporation may grant to any person, association or private corporation in any year or periodically by contract, or loan its money for economic and community development purposes,2 but the proceeds of indebtedness contracted for any such purpose shall be used only for loans for capital construction . . .” (Proceedings of the Constitutional Convention of the State of New York, Vol XII, at 31 [1967] [emphasis supplied] quoting Proposed Amendment Article X, § 12[b]).

The rejection of this amendment did nothing to deter the State’s current practice of distributing taxpayer funds to foster the growth of private industry, which defendants call “economic development.” Defendants make the specious assertion that the appropriations here do not violate the Gift Clause because the monies are not made “directly” to private companies but, rather, are first funneled though public corporations, which then distribute the funds to private entities.

In other words, because the state distributes taxpayer funds through an intermediary like the ESDC, it is not the state that is loaning money to a private corporation or undertaking, but rather a public corporation that is loaning money to private enterprise.

Robert S. Smith (dissenting):

It is an illusion — one that seems to have the persistence of original sin — that prosperity can be attained by taking money from taxpayers and handing it to favored businesses.

Of course, the New York Legislature, so long as it stays within constitutional limits, is free to disregard both received economic teachings and common sense. I have defended before, and will no doubt defend again, the right of elected legislators to commit folly if they choose. But when our Legislature commits the precise folly that a provision of our Constitution was written to prevent, and this Court responds by judicially repealing the constitutional provision, I think I am entitled to be annoyed.

Attorney James Ostrowski, for the citizen petitioners in the Pork Lawsuit, addresses the impact in an interview video with Capital Tonight.

A constitution is supposed to be the supreme law of a state. In this decision, the highest court exerts the mockery of tortured legal language, when provisions prohibit the theft of public funds. Rephrasing Judge Pigott – distorted logic and denial of lawful intent, does not become constitutional by virtue of repetition, custom or passage of time.

What recourse is left, when the legal establishment becomes the archetype dissemblers of a society that is founded in constitutional principles? Most manipulators that practice law forfeit their personal integrity, for the privilege of inclusion into the esquire junto. The State bestows special status for their loyalty to the imperium. The precepts of Roman Law are applied, as the principles of Common Law are destroyed.

If a clear cut constitutional provision can be ignored, what chance does anyone have in using the courts for redress and relief? The Philosophy of Breaking All The Rules affirms: “The U.S. Constitution failed because it allowed the codification of systemic undeniable treason. The ascendancy of unrepresentative legislators, the arrogance of presidential despots and the final arbitration by black robe lawyers sealed our fate.” Now the same applies to the New York State Constitution.

“Since Greek and Roman times, and probably before, the wearing of special robes has signified a person’s special status in the community. Elders, statesmen, and community leaders wanted to wear something that made them stand out and look important.

This tradition made its way into renaissance England, where a lot of our legal traditions come from. The English judges began wearing big, flowing red robes and white powdered wigs as their official dress. This changed somewhat with the death of Queen Mary II in 1694, when during her funeral the judges in attendance all wore black out of respect for the period of mourning. This official period of mourning lasted several years, and after this many judges kept wearing the black robes“.

“Will you finally accept that the rule of law is dead? Or will you mourn the rulings of the courts? Alternatively, will you resist the tyranny of the judiciary by all moral means? Most judges do not deserve your esteem and certainly have no claim of special status.