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Ardith Bronson, Esq. Jordanna L. Nadritch, Esq. Robert J. Brown, Esq. Sherry Millman, Esq. Beal, Esq. Phillip John Nichols, Esq. Andrew G. Lipkin, Esq. Masumoto, Esq. Velez-Rivera, Esq. Pursuant to 11 U. ECF Following the hearing, the Court entered an order setting January 4, as the deadline for filing objections. New York Racing Association, Inc. The Court held an evidentiary hearing to resolve these objections on February 22, For the following reasons the objections are overruled.
Pari-mutuel betting is a "system of gambling in which bets placed on a race are pooled and then paid less a management fee and taxes to those holding winning tickets. Goals for NYC OTB included raising revenues for the state and certain municipalities as well as fighting the role of organized crime in horse-race gambling. For the past nine years, NYC OTB has been caught in a downward spiral, based in large part on its statutory business model.
P; Decl. T ; see also N. The result is that mandatory statutory distributions frequently outpace NYC OTB's earnings after paying operating expenses. Increased operating costs, plus the legislature's changes to required statutory payments have further stressed NYC OTB's financial situation.
In addition to typical cost cutting efforts, NYC OTB also repeatedly asked the New York State Legislature, in and again in , to change the mandatory statutory distributions to assist it in returning to profitability. A key conclusion of the study was the need for the State Legislature to change the mandatory statutory distributions. By December , no legislative fix had materialized. This included the layoff of all employees, closing all locations, and ceasing all operations.
Compare N. NYC OTB was still hampered by the required statutory payments and had no funds to invest in capital improvements. NYC OTB maintains that it needed to file for chapter 9 protection to delay shutdown so the New York State Legislature could enact the legislative changes required, including changes to mandatory statutory distributions, to ensure the health and continued operation of NYC OTB.
The statute requires that a chapter 9 debtor must:. Courts must dismiss the petitions of debtors filing under chapter 9 who fail to satisfy these requirements. Int'l Ass'n. The burden of proving eligibility lies with the entity filing the petition. See, e. Bankruptcy courts should review chapter 9 petitions with a jaded eye. Principles of dual sovereignty, deeply embedded in the fabric of this nation and commemorated in the Tenth Amendment of the United States Constitution, severely curtail the power of bankruptcy courts to compel municipalities to act once a petition is approved.
See also New York v. United States, U. This fundamental constitutional principle halts bankruptcy courts from regulating or otherwise controlling expenditures or activities of municipalities. Congress deemed this principle so important it explicitly recognized the limits of bankruptcy courts' powers in section Despite the scrutiny required due to federalism issues, bankruptcy courts must balance constitutional concerns with congressional intent.
Hamilton Creek Metro. Bondholders Colo. Bondshares In re Hamilton Creek Metro. In its revisions to the statute, Congress has clearly intended to expand "the applicability of chapter IX as much as possible. Section 40 of the Bankruptcy Code defines "municipality" as a political subdivision, public agency, or instrumentality of a State.
Legislative history, however, does not offer any assistance in determining the scope of these terms. In re County of Orange, B. Courts have looked to previous iterations of the Bankruptcy Code for guidance on what is a municipality for purposes of chapter 9. Section 81 6 of the Bankruptcy Act, predating the Code, granted jurisdiction to bankruptcy courts to adjust the debts of "incorporated authorities, commissions, or similar public agencies organized for the purpose of constructing, maintaining, and operating revenue producing enterprises.
In New York, public benefit corporations are "created by the State for the general purpose of performing functions essentially governmental in nature. Long Island R. While these entities are not the same as the State of New York or its subdivisions, they may be treated as such in certain circumstances.
People v. This Court need not explore whether this is such a situation. NYC OTB is a creation of the state, made for the purpose of operating a "revenue producing enterprise. This conclusion is buttressed by Congress's desire to broaden the application of chapter 9 in the last revision. RA Obj. Section c 2 of the Bankruptcy Code requires municipalities to be "specifically authorized The Bankruptcy Code, however, did not always require specific authorization for a municipality to file for bankruptcy protection.
See generally Nicholas B. The initial version of the Bankruptcy Code only required general authorization for a municipality to file for chapter 9 protection. In re City of Bridgeport, B. The City of Bridgeport court, assaying the legislative history, determined that the requirement of general authorization was a compromise between the House of Representatives and the Senate.
The House advocated a version of the bill that would permit municipalities to file under chapter 9 so long as the act was not prohibited by state law. The draft bill pending in the Senate, however, included language requiring specific authorization. NEWS , p. The court intimated that Congress settled on this construction because some type of state authorization was required to avoid violating principles of dual sovereignty.
Specifically, the City of Bridgeport court reasoned that because an earlier Supreme Court case, Ashton v. Cameron County Water Improvement Dist. The Bankruptcy Reform Act of changed the language of section c 2 to require specific authorization. The legislative history indicates that this change was required to remedy a split where some courts required express State law authorization, while others only required general authorization, to file a chapter 9 petition.
The few courts that have analyzed this revised language consistently hold that the plain language of the statute must be satisfied: specific authorization from a state is required for a municipality to file for bankruptcy. In re Timberon Water and Sanitation Dist. These courts further hold that the explicit authorization must be written, "exact, plain, and direct with well-defined limits so that nothing is left to inference or implication. Taking a crabbed reading of section c , Objectors argue that because the New York Legislature has not passed a statute explicitly granting NYC OTB the power to file for chapter 9 protection, this specific authorization requirement cannot be met.
The Objectors overreach. Executive Order No. Objectors rely on limited case law in support of their position. These cases, however, all address instances where municipalities filed chapter 9 petitions pursuant to general grants of power in a state statute. For example, the Timberon Water court addressed an effort to use a statute granting the municipality the general power "to sue and be sued" and to "exercise all rights and powers necessary or incidental to or implied from Similarly, the Slocum court analyzed a municipality's effort to use statutorily granted powers in the Illinois Public Water District Act to "do and perform all acts and things, whether express or implied, that may be reasonably required in order to accomplish the purposes of this Act" as sufficient authorization to file for bankruptcy.
In re Slocum, B. Here, section c 2 plainly states that "a governmental officer Nothing in this reading of the statute frustrates Congress's apparent intent to require specific authorization for a municipality to file for chapter 9 protection. If Congress intended to circumscribe the power of government officials to specifically authorize the entry of municipalities into bankruptcy, it was capable of revising section c 2 to those ends.
Lorillard v. Pons, U. In addition to satisfying the "specific authorization" requirement, the Governor must also have had sufficient power under state law to authorize NYC OTB's bankruptcy filing. This requires the Court to analyze New York law. Clark v. Cuomo, 66 N. The legislative power resides in the senate and assembly, N. In New York, this construct "requires that the Legislature make the critical policy decisions, while the executive Cuomo, 85 N. This does not mean that each branch of government must operate in a vacuum, wholly sealed off from the other.
The New York Court of Appeals has consistently recognized that limited overlap in responsibilities between branches does not run afoul of the New York Constitution. He is granted "the power to enforce legislation" and "is accorded great flexibility in determining the methods of enforcement. Carey, 44 N. This power, combined with permissible overlap with the legislative branch, enables the Governor to act in certain circumstances, without a "specific and detailed legislative expression authorizing a particular executive act.
Thus, the Governor only lacks the power to act when he oversteps his constitutional role. Johnson v. Pataki, 91 N. Rosa, Misc. This only occurs when the Governor "acts inconsistently with the Legislature, or usurps its prerogatives In other words, so long as the Governor stays within the policies stated by the legislature and does not seize its legislative role, his acts are constitutional.
Rapp, 44 N. Lindsay, 39 N. RA Ex. Q at Thus, it seems clear that Executive Order No. It does not go beyond legislative policy nor does it constitute the governor usurping the legislature's role in crafting detailed statutes. This conclusion is consistent with the New York Court of Appeals' decisions regarding the power of the Governor to issue executive orders.
In Bourquin v. Bourquin, 85 N. The Governor argued that a general state statute permitting the creation of a single state consumer protection board authorized the creation of the more specific Citizens' Utility Board. See id. Looking to the text of the statute, Chief Judge Kaye reasoned that a general policy declaration that the general state consumer protection board should "promote and encourage the protection of the legitimate interests of consumers within the state" was sufficient to warrant the Governor's actions.
Chief Judge Kaye further opined that the Executive Order did not usurp the legislature's functions as it did not give any substantive directions regarding the purpose of the Citizens' Utility Board. There, the court analyzed Executive Order No. The Registration Program was implemented through various state agencies and commanded all participants to maintain political party neutrality. Under the Registration Program, voter registration forms were distributed to numerous different state agencies.
Signs were posted at these locations, reminding citizens of the requirement to register prior to voting. The court determined that this was a valid exercise of gubernatorial power, relying upon a general statute announcing the broad policy of the state board of elections.
Specifically, the statute called for the state board of elections to "encourage the broadest possible voter participation in elections. The court further reasoned that the Executive Order was acceptable because it did not create or contradict the legislature's stated policies. The facts at bar compel the same result. Specifically, the legislature has found that "the continued operation of NYC OTB corporation is of paramount importance to the public interest.
Moreover, Executive Order No. See Bourquin, 85 N. Indeed, Executive Order No. The executive orders at issue in Bourquin and Clark, however, created entirely new administrative bodies. Moreover, the executive order in Clark commandeered certain state employees, adding substantive tasks to their pre-existing workload.
See Clark, 66 N. To the extent Objectors argue that the legislature's failure to specifically authorize the Governor to file for chapter 9 protection somehow invalidates Executive Order No. As observed by the Clark and Bourquin courts, the failure to legislate a specific action does not bar the governor from taking that action pursuant to executive order.
In each of those cases the legislature considered, but failed to pass, statutes that would have had the same effect as the executive orders in question. Objectors correctly maintain that a municipality cannot rely upon generalized statutory powers to issue specific resolutions permitting it to file a bankruptcy petition. The Governor had adequate power to issue Executive Order No. Section 32 of the Bankruptcy Code defines the term "insolvent. Refuse Disposal Dist. Insolvency is analyzed from the date of the petition.
Meyer S. That's correct While NYC OTB may have been able to continue operating for a few more weeks before filing its chapter 9 Petition, the evidence clearly demonstrates that it could no longer meet its payment obligations. The legislative history of the bill mirrors these findings. NYC OTB has been avoiding bankruptcy by spending cash reserves and deferring payments on its obligations.
Rosen: We do concede that, Your Honor. Section c 4 requires that a municipality desire to effect a plan to adjust its debts. There is no specific test to determine when a municipality satisfies this requirement. In re City of Vallejo, B. In City of Vallejo, the Bankruptcy Appellate Panel reasoned that no strict rule exists because of the "highly subjective nature of the inquiry. The evidence must demonstrate that "the purpose of the filing of the chapter 9 petition [was] not simply Courts examining this requirement have determined that a filed statement indicating intent to affect a plan of reorganization, combined with efforts made towards negotiating and drafting a plan, fulfill this requirement.
In re Pierce County Housing Auth.
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