author: Read, J.

text:
    [ 846 NE2d 448, 813 NYS2d 18]
    CWM Chemical Services, L.L.C., Appellant, v Arthur J. Roth, as Commissioner of New York State Department of Taxation and Finance, et al., Respondents.
    Argued February 14, 2006;
    decided March 23, 2006

      POINTS OF COUNSEL

      Kirkpatrick & Lockhart Nicholson Graham, LLP, Boston, Massachusetts (Roger C. Zehntner and Charles J. Dyer of counsel), and Buchanan Ingersoll PC, Buffalo (Patrick J. Maxwell of counsel), for appellant.
    I. The disposal tax under ECL 27-0923 (2) discriminates against interstate commerce in waste and is unfairly apportioned in violation of the Commerce Clause of the United States Constitution. (Complete Auto Transit, Inc. v Brady, 430 US 274, 976; Homier Distrib. Co. v City of Albany, 90 NY2d 153; Chemical Waste Management, Inc. v Hunt, 504 US 334; City of New York v State of New York, 94 NY2d 577; McLeod v J. E. Dilworth Co., 322 US 327; New Energy Co. of Ind. v Limbach, 486 US 269; Tennessee Gas Pipeline Co. v Urbach, 96 NY2d 124; Hughes v Oklahoma, 441 US 322; Oregon Waste Systems, Inc. v Department of Environmental Quality of Ore., 511 US 93.) II. The Appellate Division improperly failed to strike down the disposal tax under ECL 27-0923 (2) as facially discriminatory and unfairly apportioned in violation of the Commerce Clause. (Matter of Westinghouse Elec. Corp. v Tully, 63 NY2d 191; Matter of Weil, Gotshal & Manges v O’Cleireacain, 83 NY2d 591; Matter of Suffolk County Fed. Sav. & Loan Assn. v Bragalini, 5 NY2d 579; Tennessee Gas Pipeline Co. v Urbach, 96 NY2d 124; Matter of United States Steel Corp. v Gerosa, 7 NY2d 454; Elmhurst Fire Co. v City of New York, 213 NY 87; Matter of Wood v Irving, 85 NY2d 238; Ivey v State of New York, 80 NY2d 474; Matter of New York State Superfund Coalition v New York State Dept. of Envtl. Conservation, 75 NY2d 88; Boreali v Axelrod, 71 NY2d 1.) III. The Appellate Division’s “reinterpretation” of the remediation waste exemption under ECL 27-0923 (3) (c) is wrong. (People v Mobil Oil Corp., 48 NY2d 192; Sanders v Winship, 57 NY2d 391; Matter of Brown v Wing, 93 NY2d 517; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539; Kranker v Levitt, 68 Misc 2d 224; Matter of Howard Johnson Co. v State Tax Commn., 65 NY2d 726; Hoffman v City of Syracuse, 2 NY2d 484; Matter of Lockport Union-Sun & Journal v Preisch, 7 AD2d 502, 8 NY2d 54; Matter of DeTroia v Schweitzer, 87 NY2d 338; Milbrandt v Green Refractories Co., 79 NY2d 26.) IV The Appellate Division’s affirmance of the Supreme Court’s “third decretal paragraph” without modification is in error and conflicts with the Appellate Division’s own opinion and order. (American Trucking Assns., Inc. v Scheiner, 483 US 266.) V The Appellate Division’s opinion and order fails to provide CWM Chemical Services, L.L.C. proper relief as required by McKesson Corp. v Division of Alcoholic Beverages & Tobacco, Fla. Dept, of Business Regulation (496 US 18 [1990]). (Atchison, T. & S. F. R. Co. v O’Connor, 223 US 280; Tennessee Gas Pipeline Co. v Urbach, 96 NY2d 124; Gautier v Ditmar, 204 NY 20; Matter of Mollenhauer, 257 App Div 286; Shields v Katz, 143 AD2d 743; Ontario Trucking Assn. v New York State Dept, of Taxation & Fin., 168 Misc 2d 648, 236 AD2d 70, 92 NY2d 1027; American Tel. & Tel. Co. v New York State Dept, of Taxation & Fin., 191 AD2d 61; Niagara Mohawk Power Corp. v City School Dist. of City of Troy, 59 NY2d 262; Matter of First Natl. City Bank v City of N.Y. Fin. Admin., 36 NY2d 87.)

      Eliot Spitzer, Attorney General, Albany (Andrew D. Bing, Caitlin J. Halligan, Daniel Smirlock and Peter H. Schiff of counsel), for respondents.
    I. The Appellate Division correctly declared only the tainted exemptions unconstitutional rather than striking the entire disposal tax. (Matter of Westinghouse Elec. Corp. v Tully, 63 NY2d 191; People ex rel. Alpha Portland Cement Co. v Knapp, 230 NY 48; General Elec. Co. v New York State Dept. of Labor, 936 F2d 1448; People v Liberta, 64 NY2d 152; Field v Clark, 143 US 649; Matter of Hynes v Tomei, 92 NY2d 613; Tennessee Gas Pipeline Co. v Urbach, 96 NY2d 124; LaValle v Hayden, 98 NY2d 155; Alliance of Am. Insurers v Chu, 77 NY2d 573; Matter of Federal Deposit Ins. Corp. v Commissioner of Taxation & Fin., 83 NY2d 44.) II. Due process does not require that CWM Chemical Services, L.L.C. receive a refund in this action. (McKesson Corp. v Division of Alcoholic Beverages & Tobacco, Fla. Dept. of Business Regulation, 496 US 18; Tully v Griffin, Inc., 429 US 68; Klostermann v Cuomo, 61 NY2d 525; Bankers Trust Corp. v New York City Dept. of Fin., 1 NY3d 315; Matter of Consolidated Rail Corp. v Tax Appeals Trib. of State of N.Y., 231 AD2d 140, 91 NY2d 848; Matter of Brault v New York State Tax Appeals Trib., 265 AD2d 700; Carpenter v Shaw, 280 US 363; Ward v Board of Commr’s of Love Cty., 253 US 17; Atchison, T. & S. F. R. Co. v O’Connor, 223 US 280.) III. New York law precludes the relief CWM Chemical Services, L.L.C. seeks in this action. (Tennessee Gas Pipeline Co. v Urbach, 269 AD2d 19, 96 NY2d 124; Matter of Finch, Pruyn & Co. v Kearns, 282 AD2d 858; Stahlbrodt v Commissioner of Taxation & Fin. of State of N.Y., 111 Misc 2d 571, 246 AD2d 793, 92 NY2d 646; Shields v Katz, 143 AD2d 743; Harper v Virginia Dept. of Taxa

      tion, 509 US 86; American Tel. & Tel. Co. v New York State Dept. of Taxation & Fin., 191 AD2d 61, 84 NY2d 31; Ontario Trucking Assn. v New York State Dept. of Taxation & Fin., 168 Misc 2d 648, 236 AD2d 70, 92 NY2d 1027; Solnick v Whalen, 49 NY2d 224; Matter of First Natl. City Bank v City of N.Y. Fin. Admin., 36 NY2d 87; Morell v Balasubramanian, 70 NY2d 297.)

      Bond, Schoeneck & King, PLLC, Syracuse (Barry R. Kogut and Kathleen M. Bennett of counsel), for General Motors Corporation, amicus curiae.
    I. The disposal tax discriminates against interstate commerce in violation of the Commerce Clause. (Complete Auto Transit, Inc. v Brady, 430 US 274; Chemical Waste Management, Inc. v Hunt, 504 US 334.) II. The Appellate Division erred in its assessment of legislative intent in fashioning relief for the unconstitutional imposition of the disposal tax. (Waste Recovery Enters. v Town of Unadilla, 294 AD2d 766, 100 NY2d 614, 1 NY3d 507, 542 US 904; Matter of Westinghouse Elec. Corp. v Tully, 63 NY2d 191; Matter of NewChannels Corp. v Tax Appeals Trib. of Dept. of Taxation & Fin. of State of N.Y., 279 AD2d 164; Debevoise & Plimpton v New York State Dept, of Taxation & Fin., 80 NY2d 657.) III. In assessing legislative intent, the Court needs to consider environmental issues in a broad context including the impact of striking down the disposal tax exemptions on the maintenance of sufficient hazardous waste management capacity in New York. (Matter of Siwek v Mahoney, 39 NY2d 159; People ex rel. Nichols v Board of County Canvassers of Onondaga County, 129 NY 395; Affronti v Crosson, 95 NY2d 713.)
   OPINION OF THE COURT

Read, J.

The courts below held, and the State does not contest, that State Superfund’s disposal tax, a part of the statutory financing scheme for the cleanup of inactive hazardous waste disposal sites in New York State, unlawfully discriminates against interstate commerce and thus violates the Commerce Clause of the United States Constitution. We are asked on this appeal how to cure the constitutional infirmity while remaining true to the Legislature’s intent. For the reasons that follow, we conclude that striking the disposal tax—ECL 27-0923 (2)—in its entirety does the least damage to the overall statutory design.

I.

By the late 1970’s, Love Canal and similar toxic artifacts of past industrial activity commanded considerable public attention, producing alarm and provoking widespread calls for government action. Because legislative intent controls the outcome of this appeal, we begin by surveying the succession of complex environmental laws adopted over the ensuing years to address this legacy of hazardous waste sites.

With chapter 282 of the Laws of 1979, New York became one of the first states in the nation to grapple with the problem. In general, this legislation directed the New York State Department of Environmental Conservation (DEC) to conduct a statewide inventory and establish a statewide registry of inactive hazardous waste disposal sites. The statute also authorized DEC (or, in certain circumstances, the Commissioner of Health) to order those responsible for the contamination at a site to clean it up, and, if these parties were unwilling to comply, to fix the site with public funds and sue later to recoup reasonable expenses. The State was also authorized to spend public monies to clean up true orphan sites—those where there were no identified or solvent responsible parties. Monies were appropriated for these purposes.

A year later, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) (42 USC §§ 9601-9675). CERCLA provided broad federal authority to force potentially liable parties to clean up releases or threatened releases of hazardous substances endangering public health or the environment, and to reimburse the federal government for cleanup costs that it incurred. The statute also established a $1.6 billion Hazardous Substance Response Fund, commonly referred to as the Federal Superfund, to pay for cleanup and related activities undertaken by the federal government. The Superfund was financed by a so-called “front-end” tax on petroleum products and chemical feedstocks.

The Legislature soon revisited the subject of inactive hazardous waste disposal sites, enacting chapter 857 of the Laws of 1982. This legislation strengthened and clarified the powers vested in DEC and the Department of Health by the 1979 statute. Its “central feature,” however, was the creation of a non-lapsing revolving fund known as the Hazardous Waste Remedial Fund, or State Superfund, supported by special assessments imposed on industry (see Governor’s Approval Mem, 1982 NY Legis Ann, at 275). This fund, projected to reach $10 million by the end of its first year, was to supply “monies to clean up the many sites for which no Federal Superfund support [was] available” as well as “to provide the State’s share of monies for clean-up projects undertaken by the federal government pursuant to its Superfund,[] and to make monies available for hazardous waste emergencies” (id.).

Section 27-0923 of the Environmental Conservation Law imposed special assessments upon “every person engaged within the state in the generation of [an identified or listed] hazardous waste” and “persons holding permits for the storage, treatment or disposal of hazardous waste” (see former ECL 27-0923 [1], [2]). The generator taxes were $12 per ton of hazardous waste generated and disposed in a landfill; $9 per ton of hazardous waste generated and treated or disposed off the site of generation, other than in a landfill; and $2 per ton of hazardous waste incinerated on the site where generated (see former ECL 27-0923 [1] [a], [b], [c]). The corresponding disposal taxes levied on transfer, storage and disposal facilities operating in New York were $12 per ton of hazardous waste disposed in a landfill; and $9 per ton of hazardous waste treated or disposed, other than in a landfill, in any facility located off the site where the waste was generated (see former ECL 27-0923 [2] [a], [b]).

These so-called “waste-end” taxes were to be deposited in the newly created State Superfund, which also included any appropriations as well as fines for violations of certain environmental offenses (see former State Finance Law § 97-b [1], [2]). As the legislation’s sponsor explained, the State Superfund was

“the product of months of negotiations between the Senate, Assembly, Governor’s office, DEC, and environmental and business interests. All of these groups have agreed that this [legislation] constitutes the best compromise between the need for a healthful environment and the practical limitations on both industry and the state” (see Letter of Support from Senator John R. Dunne to John G. McGoldrick, Governor’s Counsel, at 2, Bill Jacket, L 1982, ch 857).

The State Superfund sent a “clear signal to the generators . . . that the public policy of the state is to clean up inactive chemical dumps,” and also “ensure[d] that the future treatment, storage and disposal of such wastes is done properly” by “creating] incentives to reduce the volume of wastes” even though “[r] educing wastes . . . lowers fees paid into the superfund” (see Revised Mem in Support, at 4, Bill Jacket, L 1982, ch 857).

The legislation included several specific exemptions. Hazardous waste that was recycled or otherwise recovered for beneficial use as raw materials was exempt from taxation (see ECL former 27-0923 [1] [e]; [2] [d]). This exemption, like the structure of the assessment system, sought to promote and reward more desirable waste management practices. For purposes of section 27-0923, “generation of hazardous waste” did not include “retrieval or creation of hazardous waste which [was] disposed of due to remediation of an inactive hazardous waste disposal site” (ECL former 27-0923 [1] [d]). This exemption furthered the State’s public policy to encourage private parties to undertake remedial actions. Finally, no disposal tax was “imposed upon disposal of hazardous waste where such waste was generated by persons subject to [the generator tax]” (ECL former 27-0923 [2] [c]). The Legislature understood that disposal taxes would be passed on to customers, and so levied them only against out-of-state wastes because “New York generators using [in-state treatment, storage and disposal] facilities . . . pay at the point of generation” (see Revised Mem in Support, at 1, Bill Jacket, L 1982, ch 857). In other words, the Legislature plainly intended for these taxes to be paid only once, either at the point of generation or the point of disposal.

In 1985, the Legislature enacted “an integrated package of three revenue sources to accelerate the clean-up of hazardous waste disposal sites in New York State,” principally because the generator and disposal taxes adopted in 1982 “never generated the annual income which was expected” (see Governor’s Mem approving L 1985, ch 38, 1985 NY Legis Ann, at 51). The generator taxes were raised from $12 to $27 per ton for hazardous waste generated and disposed in a landfill, now specifically including residues from on-site treatment; remained $9 per ton for hazardous waste incinerated off the site of generation; remained $2 per ton for hazardous waste incinerated on the site where the waste was generated; and were raised from $9 to $16 per ton for hazardous waste generated and treated or disposed off the site of generation, other than in a landfill or by incineration (see ECL former 27-0923 [1] [a], [b], [c], [d]). The corresponding disposal taxes were raised from $12 to $27 per ton for hazardous waste disposed in a landfill; remained $9 per ton for hazardous waste incinerated off the site of generation; and were raised from $9 to $16 per ton for hazardous waste treated or disposed, other than in a landfill or by incineration, in any facility located off the site where the waste was generated (see ECL former 27-0923 [2] [a], [b], [c]). The Legislature retained the exemptions for hazardous waste handled by resource recovery methods (see ECL former 27-0923 [3] [a]), and the exemptions for hazardous waste generated during cleanup of an inactive hazardous waste disposal site located in New York (renumbered as ECL 27-0923 [3] [c]) and hazardous waste already taxed once by New York at the point of generation (relettered as ECL 27-0923 [2] [d]).

It was anticipated that these modified waste-end taxes would raise about $6 million annually for State Superfund (Mem of Senator Hugh T. Farley, 1985 NY Legis Ann, at 50). The Legislature counted on an additional $6 million per year from doubling the annual program fees imposed by sections 72-0402 and 72-0502 of the ECL on hazardous waste generators and transporters; and an additional $10 million per year by adding a license fee surcharge of 21/2 cents for each barrel of petroleum transferred within the state by major petroleum facilities, which are those with total storage capacity of 400,000 gallons or more (see Navigation Law former § 174 [4] [b]) (id. at 50-51). These industry taxes plus $8 million from the State’s General Fund were thus projected to provide an annual revenue stream of $30 million for State Superfund.

Finally, chapter 38 included a straightforward severability clause. This provision states that

“[i]f any clause, sentence, paragraph, section or part of this act shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operations to the clause, sentence, paragraph, section or part thereof directly involved in the controversy in which such judgment shall have been rendered” (L 1985, ch 38, § 19).

Because New York required far more than $30 million in annual revenues to finance remedies at the hundreds of inactive hazardous waste disposal sites identified throughout the state, the Legislature the next year enacted chapter 511 of the Laws of 1986, the Environmental Quality Bond Act (EQBA). This statute authorized the creation of general obligation debt in the amount of $1.45 billion upon its approval by the electorate in November 1986. Of that amount, $1.2 billion was earmarked for State Superfund.

Even this sum proved unequal to the task. By the late 1990’s, it had become apparent that EQBA funds would be fully obligated before the State ran out of remedial work. The Legislature tackled the shortfall by restructuring and refinancing State Superfund as part of chapter 1 of the Laws of 2003, a massive environmental initiative that also reformed DEC’S Superfund-related authorities and created a new program to encourage private investment in the cleanup and redevelopment of brown-fields. This legislation authorized $120 million annually for State Superfund, to be financed with bonds issued by the Environmental Facilities Corporation (EFC), not to exceed a total of $1.2 billion.

State Superfund is now comprised of five separate accounts as specified in State Finance Law § 97-b. One of these accounts—the Industry Fee Transfer Account (IFTA)—consists of multiple revenue streams: the special assessments at issue in this litigation; hazardous waste program surcharges imposed upon generators by chapter 1 of the Laws of 2003, which range from $4,000 to $360,000 per year (see ECL 72-0403), and any penalties or interest related to these surcharges; one half the revenue from any penalties and interest related to hazardous waste or transporter program fees under ECL 72-0402 and 72-0502 respectively; and petroleum license fee surcharges under Navigation Law § 174 (4) (b), which are now 4V4 cents per barrel. IFTA and the General Fund each pay half the debt service on bonds issued to finance State Superfund (State Finance Law § 97-b [11]). The New York State Assembly Memorandum in Support of chapter 1 states that “[o]n average, approximately $45 million [in State Superfund] is from [industry fees comprising IFTA] to be used toward current and future debt service and matched by the General Fund” (see Mem in Support of L 2003, ch 1, 2003 McKinney’s Session Laws of NY, at 1580).

II.

Plaintiff CWM Chemical Services, L.L.C., owns and operates a sizable licensed hazardous waste treatment and disposal facility in Model City, New York, near Niagara Falls, Buffalo and the Canadian border. Beginning with the quarterly tax period ending on December 31, 1995, CWM stopped paying the disposal tax for a specific class of out-of-state hazardous waste—those wastes generated in out-of-state CERCLA cleanups undertaken by EPA rather than by another governmental party or a private party. CWM explains its decision to stop paying these disposal taxes, which it had previously paid while harboring doubts about their constitutionality, as a last-ditch response to competitive pressures that it perceived as threatening its solvency.

Over the next four years, the New York State Department of Taxation and Finance (DTF) issued CWM deficiency notices seeking to recover the unpaid taxes plus interest. CWM challenged the notices administratively, contending that the disposal tax violated the Commerce Clause; however, the agency repeatedly declined to consider CWM’s defense, essentially pleading lack of jurisdiction at the administrative level to determine a state statute’s facial constitutionality.

Frustrated administratively, CWM commenced this declaratory judgment action in Supreme Court on May 10, 2001 against DTF and DEC and their respective Commissioners (the State). CWM asserted that ECL 27-0923 discriminated against interstate commerce by taxing disposal of “remediation waste” resulting from out-of-state hazardous waste cleanups, but not the same kind of waste when generated during in-state hazardous waste cleanups; and by exempting process or “base business” hazardous waste subject to New York’s generator tax “but providing no similar exemption for waste that has been subjected to a generator tax in another state.” CWM asked Supreme Court to declare the disposal tax unconstitutional, enjoin its enforcement and refund the disposal taxes that it had paid for out-of-state hazardous waste received at Model City. CWM subsequently moved for summary judgment, which the State opposed.

Supreme Court granted CWM partial summary judgment, declaring ECL 27-0923 (3) (c) “facially discriminatory in violation of the Commerce Clause . . . insofar as it exempts from taxation hazardous waste resulting from remediation of in-state inactive hazardous waste sites without affording a similar exemption to remediation of similar out-of-state inactive hazardous waste sites” (emphasis added). The court also declared ECL 27-0923 (2) (d)

“facially discriminatory in violation of the Commerce Clause . . . insofar as it exempts from taxation the disposal of hazardous waste generated in New York State which has been taxed pursuant to ECL § 27-0923 (1), without exempting from taxation the disposal of hazardous waste generated in another state which has been taxed pursuant to any other state’s similar generation tax” (emphasis added).

Supreme Court ordered the refund of all disposal taxes paid by CWM on out-of-state cleanup waste. As for out-of-state process waste, the court ordered a refund “equal to taxes paid to another state upon similar generation not to exceed the exemption granted to such hazardous wastes generated in New York.” In essence, Supreme Court cured the disposal tax’s constitutional defect by extending the exemptions for in-state cleanup and process wastes to out-of-state cleanup and process wastes. The practical effect was to preserve the disposal tax but to expand its exemptions, thus reducing the amount of revenue that it raised. The court limited refunds due CWM to those improperly collected disposal taxes for which timely claims had been made under Tax Law § 1087, which sets out the procedure for claiming tax refunds and establishes a three-year statute of limitations. CWM appealed and the State cross-appealed.

While agreeing with Supreme Court that the disposal tax discriminated against interstate commerce in violation of the Commerce Clause, the Appellate Division tacked the other way on remedy. Rather than extending the exemptions for in-state cleanup and process wastes to out-of-state cleanup and process wastes, the Court eliminated these exemptions from the disposal tax altogether. Indeed, the Court implied that in-state cleanup waste should never have been immune from the disposal tax in the first place, contrary to DEC’s long-standing interpretation of ECL 27-0923.

The practical effect of the Appellate Division’s decision was to expand the disposal tax rather significantly. The Court considered this remedy proper because, in its view, chapter 38 of the Laws of 1985 was designed only to “raiste] revenues necessary to fund the cleanup of looming threats posed by inactive hazardous waste sites” and “tp]artial invalidity must not curtail the entire revenue stream necessary to fund the cleanup of inactive hazardous waste sites in New York” (15 AD3d 77, 84 [4th Dept 2004]). Noting that its decision might “result in a disproportionate assessment on hazardous waste generated in state,” the Court “invite[d] the Legislature to consider amending ECL 27-0923 to address any disproportionate assessment” (id. at 87). Finally, the Appellate Division observed that to the extent that CWM might be entitled to relief on the ground that portions of the disposal tax were unconstitutional, it should seek relief administratively as provided for in article 27 of the Tax Law (see ECL 27-0923 [6]).

CWM appealed as of right on constitutional grounds pursuant to CPLR 5601 (b) (1). The key question for us to decide is whether the Appellate Division selected the proper remedy for the constitutional infirmity that it found. There are, in fact, three options for severing the invalid portion of the special assessments and preserving the remainder. We may effectively extend the exemptions for in-state cleanup and process wastes to out-of-state cleanup and process wastes, which is what Supreme Court did. Both parties object to this approach as unworkable in practice, and we do not consider it further. Or we may eliminate the exemptions from the disposal tax for in-state cleanup and process wastes. This is the path taken by the Appellate Division, which the State urges us to follow. Finally, we may sever the disposal tax from the special assessments. This is the option advocated by CWM, which we adopt.

III.

The basic rule governing severability was elegantly put by Judge Cardozo decades ago:

“The question is in every case whether the legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether. The answer must be reached pragmatically, by the exercise of good sense and sound judgment, by considering how the statutory rule will function if the knife is laid to the branch instead of at the roots” (People ex rel. Alpha Portland Cement Co. v Knapp, 230 NY 48, 60 [1920]).

This exercise

“requires first an examination of the statute and its legislative history to determine the legislative intent and what the purposes of the new law were, and second, an evaluation of the courses of action available to the court in light of that history to decide which measure would have been enacted if partial invalidity of the statute had been foreseen” (Matter of Westinghouse Elec. Corp. v Tully, 63 NY2d 191, 196 [1984]).

The Legislature most assuredly enacted the waste-end taxes to produce revenue to support State Superfund. But even at the program’s inception in 1982, when the generator and disposal taxes were State Superfund’s primary, if not sole, revenue source, the Legislature also consciously designed the statute to serve competing purposes. The Legislature wanted to encourage certain behaviors—such as the incineration of hazardous waste, for example—and to discourage others—most notably, landfilling. To accomplish this, landfilling was taxed more heavily than any other treatment or disposal method, incineration was taxed at the lowest rate and resource recovery was not taxed at all. By creating this graduated tax scheme, the Legislature was knowingly reducing revenue.

State Superfund reflects other similar trade-offs, including the exemptions for in-state cleanup and process wastes at the heart of this appeal. As the legislation’s sponsor observed, State Superfund was intended to spur private parties to remedy inactive chemical dumps. The tax exemption for in-state cleanup waste furthered this goal, or at least did not discourage it. The sponsor also noted that State Superfund represented a bargain struck among government, environmental interests and industry, a “compromise between the need for a healthful environment and the practical limitations on both industry and the state” (see. Letter of Support from Senator John R. Dunne to John G. McGoldrick, Governor’s Counsel, at 2, supra). The exemption for in-state process waste, a part of this compromise, signaled the Legislature’s intention to make sure that New York State businesses would be taxed for these wastes only once, at the point of generation.

Next, we are mindful that over time, the Legislature has retained the in-state cleanup and process waste exemptions, while waste-end taxes have come to play a much diminished role in financing State Superfund. They are no longer the program’s primary funding mechanism—as was the case in 1982—or responsible for 20% of its funding—as was the case in 1985. These taxes now make up some portion of IFTA, one of five separate accounts constituting State Superfund. IFTA is restricted to funding half the debt service on the bonds that are by far and away State Superfund’s primary source of revenue.

In short, the history of State Superfund demonstrates that the special assessments have always reflected a balancing of several important objectives—the need to raise revenue (especially in the program’s early years); the desire to foster environmentally sound disposal methods and generator-financed cleanups of inactive hazardous waste disposal sites located in New York; and the intention to ensure that New York businesses paid only a generator tax and were not subject to indirect payment of the disposal tax as well when they shipped their hazardous waste to an in-state commercial treatment, storage or disposal facility.

Next, we must evaluate the options advocated by the parties in light of this legislative history. Here, Judge Cardozo teaches us that “[s]everanee does not depend upon the separation of the good from the bad by paragraphs or sentences in the text of the enactment. The principle of division is not a principle of form. It is a principle of function” (Alpha Portland Cement Co., 230 NY at 60 [citations omitted]).

In this case, we conclude that striking the disposal tax in its entirety is the available option that best furthers the multiple legislative purposes of the special assessments. This approach preserves the generator tax as a revenue stream. It does not significantly curtail revenues for funding hazardous waste cleanups, as the Appellate Division feared, because waste-end taxes, as a whole, are a small part of State Superfund’s overall financing scheme.

The alternative adopted by the Appellate Division and supported by the State—elimination of the exemption from the disposal tax for both in-state cleanup and in-state process waste— would completely thwart express legislative commands. This course of action would effectively double the waste-end taxes paid by generators on in-state process waste, although the Legislature directed them to pay only once. It would also impose a disposal tax on in-state “remediation waste”—a new tax that generators have never before paid. We are not persuaded that the Legislature, if blessed with the gift of foresight, would have chosen to correct the constitutional defect in this way—by double-taxing the hazardous waste generated by New York businesses in their daily operations, and taxing hazardous waste cleaned up to protect New Yorkers’ health and the environment, an activity that the Legislature sought to promote.

Finally, the State has satisfied due process here by providing CWM with both predeprivation relief in the form of an action for declaratory judgment and postdeprivation relief under Tax Law § 1087. We agree with the Appellate Division that CWM should pursue its refund claim, which involves unresolved factual issues, administratively (see ECL 27-0923 [6] [incorporating article 27 of the Tax Law, including sections 1087, 1089 and 1090 regarding refund claims, administrative and judicial review]). McKesson Corp. v Division of Alcoholic Beverages & Tobacco, Fla. Dept. of Business Regulation (496 US 18 [1990]) grants a state great flexibility in responding to the determination that it has levied an impermissibly discriminatory tax, and does not mandate that Supreme Court consider CWM’s request for a refund in this declaratory judgment action.

Accordingly, the order, insofar as appealed from, should be modified, without costs, by granting judgment declaring in accordance with this opinion and, as so modified, affirmed.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and R.S. Smith concur.

Order, insofar as appealed from, modified, etc.

      . In general, an “[inactive hazardous waste disposal site” is “any area or structure used for the long term storage or final placement of hazardous waste” (ECL 27-1301 [2]).

      . CERCLA requires states to pay or assure payment of 10% of the costs of remedial actions undertaken by the United States Environmental Protection Agency (EPA) to respond to releases at facilities within their borders, including all future maintenance (see 42 USC § 9604 [c] [3] [C] [i]). This figure increases to a minimum of 50% of the costs if a state or any of its political subdivisions operated the facility, either directly or through a contractual relationship or otherwise, at which the release occurs (see 42 USC § 9604 [c] [3] [C] [ii]).

      . This tax schedule and structure remain the same today, although the Legislature has enacted additional exemptions over the years (see e.g. ECL 27-0923 [1] [e], [f]).

      . Of this $1.2 billion, up to $100 million was to be made available for no-interest loans to municipalities to assist in the proper closure of municipal landfills. The remaining $250 million authorized by the EQBA was to be used for land acquisition.

      . Neither the record nor the legislative history of chapter 1 of the Laws of 2003 discloses precisely how much the waste-end taxes contribute to IFTA. In the Economic and Revenue Outlook submitted with his 2006-2007 Executive Budget, the Governor indicates that the total revenue received from the waste-end taxes in the 2004-2005 fiscal year was $2.3 million (see chttp:// publications .budget. state. ny.us/executive. html>, cached at chttp:// www.courts.state.ny.us/reporter/webdocs/nys_dob_exec_budget.htm>). This figure obviously would not reflect those disposal taxes that CWM did not pay. Postsubmission representations by the parties, however, suggest that the total revenue collected by the waste-end taxes would have been just over double if CWM had paid its assessments in full.

      . In the technical amendments to chapter 1 of the Laws of 2003, the Legislature amended ECL 72-0403 to exempt hazardous waste generated during government-sanctioned cleanups from the hazardous waste surcharge added by the 2003 legislation (see L 2004, ch 577, part I, § 7, adding ECL 72-0403 [1] [m]). ECL 27-0923 (3) (c) was amended consistently at the same time (see L 2004, ch 577, part I, § 5 [specifying that exempt hazardous waste must be disposed of pursuant to an order of or agreement or contract with DEC]). These amendments demonstrate the Legislature’s continuing interest in affording hazardous waste generated as a result of cleanups more favorable tax treatment than hazardous waste generated by businesses in their daily operations.


source: Caselaw Access Project

author: Chief Judge Kaye. R.S. Smith, J. (dissenting).

license: Public Domain

text:
    [ 846 NE2d 461, 813 NYS2d 31]
    The People of the State of New York, Respondent, v John Boyer, Appellant.
    Argued February 9, 2006;
    decided March 28, 2006

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (David J. Klem and Robert S. Dean of counsel), for appellant.
    I. The prosecution’s failure to provide CPL 710.30 notice of the pretrial police-arranged identification requires preclusion of the identification testimony because the Wharton confirmatory-identification exception to the notice requirement is limited to buy-and-bust cases and certainly does not apply where the officer responding to a 911 call catches only a brief and fleeting glimpse of the perpetrator. (People v Wharton, 74 NY2d 921; People v Newball, 76 NY2d 587; People v Bernier, 73 NY2d 1006; Gilbert v California, 388 US 263; United States v Wade, 388 US 218; Stovall v Denno, 388 US 293; People v Gissendanner, 48 NY2d 543; People v Rodriguez, 79 NY2d 445; People v Collins, 60 NY2d 214; People v Tas, 51 NY2d 915.) II. Appellant’s adjudication and sentence pursuant to New York’s persistent violent felony offender statutes are unconstitutional under the principles announced in Apprendi v New Jersey (530 US 466 [2000]). (People v Morse, 62 NY2d 205; People v Rivera, 5 NY3d 61; Almendarez-Torres v United States, 523 US 224; People v Daniels, 5 NY3d 738; People v West, 4 NY3d 749; People v O’Garra, 16 AD3d 251, 5 NY3d 766.)

      Robert M. Morgenthau, District Attorney, New York City (Alan Gadlin and Mark Dwyer of counsel), for respondent.
    I. In accordance with established precedent, the lower courts properly concluded that the People were not obliged to provide CPL 710.30 notice of Officer Cremin’s identification of defendant. (People v Wharton, 74 NY2d 921; People v Angelo, 88 NY2d 217; People v Kello, 96 NY2d 740; Watkins v Sowders, 449 US 341; People v Chipp, 75 NY2d 327, 498 US 833; People v Taylor, 65 NY2d 1; People v Laing, 79 NY2d 166; Neil v Biggers, 409 US 188; Simmons v United States, 390 US 377.) II. Contrary to defendant’s unpreserved claim, he had no constitutional right to have a jury determine whether he was a persistent violent felony offender. (Apprendi v New Jersey, 530 US 466; People v Besser, 96 NY2d 136; People v Rosen, 96 NY2d 329, 534 US 899; People v Oliver, 63 NY2d 973; People v Daniels, 5 NY3d 738; Almendarez-Torres v United States, 523 US 224; Jones v United States, 526 US 227; Blakely v Washington, 542 US 296; People v

      Rivera, 5 NY3d 61; United States v Santiago, 268 F3d 151, 535 US 1070.)
   OPINION OF THE COURT

Chief Judge Kaye.

The People ask us to extend the “confirmatory identification” exception derived from People v Wharton (74 NY2d 921 [1989]) to situations where a police officer’s initial encounter with a suspect and subsequent identification of that suspect are temporally related, such that the two might be considered part of a single police procedure. To do so, however, would run afoul of CPL 710.30. Moreover, such an exception would eliminate the protections offered by a Wade hearing even when the initial police viewing—albeit part of a single police procedure—was fleeting, unreliable and susceptible of misidentification.

The Facts

On November 11, 2000, at 6:05 p.m., Michael Todd was in his Manhattan apartment when he noticed someone on the fire escape of the building across the courtyard. Although the sun had set, there were lights in the courtyard and Todd used his binoculars to take a closer look. Todd saw someone he later identified as Black or Hispanic, wearing a red sweater or sweatshirt, dark pants and a hat, but he was unable to make out the details of the individual’s face. After seeing the person attempt to open several windows, Todd called 911.

Officers Cremin, Sandoval, O’Boyle and Brennan responded to the radio call of a burglary in progress, involving a male Black or Hispanic. Entering the courtyard, they heard Todd direct them to the fire escape. Eventually, at least two of the officers saw a person crouching on the fire escape several floors up and shone their flashlights on him. Officer Cremin told the individual to come down but he instead ran up the fire escape toward the roof. Officer O’Boyle was able to observe only the individual’s clothing. Officer Cremin, however, later testified that he was able to see the individual’s face—a male Hispanic with facial hair—as well as his dark jacket and pants when the man, running to the roof, stopped for two to four seconds on the fourth or fifth story fire escape (some 40 to 50 feet up) and looked down. Officer Cremin radioed a description to his fellow officers but did not mention facial hair.

Several officers made it to the roof but the man was already gone. From the roof, they saw an individual wearing a black jacket and dark pants in a small alley adjacent to the building. One of the officers ordered the man to stop but he ran from the alley. Officer Brennan sent a radio call that a male Hispanic dressed in black was running north on Broadway toward Dyckman Street. Auxiliary Police Sergeant Escoto, who happened to be working in the area that day, heard the radio transmission and spotted defendant, wearing dark pants, a red shirt and black jacket, on Dyckman Street running east toward Broadway. When Escoto approached defendant, defendant was out of breath and sweating. Other officers quickly arrived and defendant was taken into custody.

One of the officers radioed for another officer to come make an identification. Although Officer Cremin was unsure whether he had heard this transmission, he arrived at the scene where defendant was being held, after having searched for the suspect in a subway station and spoken with a possible witness inside a store. Approximately 30 minutes had elapsed since the initial 911 call. Officer Cremin observed defendant sweating, noticed his rapid heartbeat and identified him as the man he had seen on the fire escape. Following defendant’s arrest, the prosecution made voluntary disclosures but failed to mention a pretrial identification and served no CPL 710.30 (1) (b) notice. Defendant moved to preclude any identification testimony based on the lack of notice.

During defendant’s pretrial Huntley hearing—centered on possible suppression of statements not at issue here—Officer Cremin testified about his street identification and also made an in-court identification of defendant. After the hearing, defendant argued that both the out-of-court and in-court identifications should be precluded due to the lack of CPL 710.30 notice. The court, however, found that no notice was required and permitted Officer Cremin to testify at trial about his out-of-court identification and to identify defendant as the individual he had observed on the fire escape. Officer Cremin was the only witness to identify defendant as the individual on the fire escape.

Defendant was convicted of two counts of attempted second-degree burglary. The Appellate Division affirmed the conviction, holding that Officer Cremin’s identification “constituted a confirmatory identification that was exempt from the notice and hearing requirements of CPL article 710.” We now reverse and order a new trial.

The Applicable Law

CPL 710.30 could not be clearer. The Legislature has prescribed that, within 15 days of arraignment, the prosecution must serve upon the defendant notice of its intention to introduce at trial “testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such” (CPL 710.30 [1] [b]). Upon the service of notice, “the defendant must be accorded reasonable opportunity to move before trial, pursuant to subdivision one of section 710.40, to suppress” the identification (CPL 710.30 [2]). If notice is not given, the prosecution will be precluded from introducing such evidence at trial, unless (1) it is permitted to serve a late notice for good cause shown, or (2) the defendant has moved to suppress the identification. testimony and the motion is denied (see CPL 710.30 [2], [3]). Neither of these exceptions is relevant here.

CPL 710.30 underscores and facilitates the defendant’s right, prior to trial, to test the reliability of any out-of-court identifications that the People intend to introduce. The statutory scheme ensures that the identifications are not the product of undue suggestiveness, and lessens the possibility of misidentification (see People v Rodriguez, 79 NY2d 445, 449 [1992]; People v Newball, 76 NY2d 587, 590-591 [1990]). The statutory mandate is plain and the procedure simple: the People serve notice, the defendant moves to suppress and the court holds a Wade hearing to consider the suppression motion. A court may summarily deny a suppression motion without a hearing only if “[t]he motion papers do not allege a ground constituting [a] legal basis for the motion” (CPL 710.60 [3] [a]). Thus, once the People serve notice that they intend to introduce identification testimony, the defendant may choose to respond with a motion to suppress that testimony and, so long as the motion alleges undue suggestiveness, the defendant is generally entitled to a Wade hearing.

We have recognized, however, two instances when, as a matter of law, the identification at issue could not be the product of undue suggestiveness. Under such circumstances, the defendant is not entitled to a Wade hearing and thus the People are not obligated to provide notice pursuant to CPL 710.30 (1) (b). This so-called “confirmatory identification” exception carries significant consequences and is therefore limited to the scenarios set forth in People v Wharton and People v Rodriguez, where there is no risk of misidentification. As we noted in Rodriguez, a court may summarily deny a Wade hearing (and hence no CPL 710.30 notice would be required) where the court concludes that, as a matter of law, the identifying, civilian witness knew the “defendant so well that no amount of police suggestiveness could possibly taint the identification” (79 NY2d at 453).

Here, we are concerned only with the Wharton scenario. In Wharton, an experienced undercover officer observed the defendant face-to-face during a planned buy-and-bust operation. The officer then radioed his backup team with a description of the defendant, who was immediately arrested. As planned, within five minutes of the arrest, the purchasing officer drove past the defendant specifically for the purpose of identifying him, and then again identified him a few hours later at the police station.

Under such circumstances, we held that the defendant was not entitled to a Wade hearing (and thus would not be entitled to CPL 710.30 notice) to test the officer’s identification, reasoning that

“[t]he viewing by this trained undercover narcotics officer occurred at a place and time sufficiently connected and contemporaneous to the arrest itself as to constitute the ordinary and proper completion of an integral police procedure. Additionally, as we have observed in this kind of situation, it lent assurance that an innocent person was not being detained by reason of a mistaken arrest. The undercover officer’s participation in the criminal apprehension operation at issue was planned, and he was experienced and expected to observe carefully the defendant for purposes of later identification and for completion of his official duties” (79 NY2d at 922-923 [citations omitted]).

We further stated that there is no “categorical rule exempting from requested Wade hearings confirmatory identifications by police officers by merely labeling them as such. Where the nature and circumstances of the encounter and identification may warrant, a hearing should and undoubtedly will be held” {id. at 923 [citation omitted]).

Thus, the quality of the officer’s initial viewing must be a critical factor in any Wharton-type analysis. The risk of undue suggestiveness is obviated only when the identifying officer’s observation of the defendant is so clear that the identification could not be mistaken. When there is a risk that the quality of the initial observation has eroded over time, we have consistently held that police identifications do not enjoy any exemption from the statutory notice and hearing requirements (see People v Mato, 83 NY2d 406, 410-411 [1994]; Newball, 76 NY2d at 591-592; People v Gordon, 76 NY2d 595 [1990]). Indeed, in Gordon we made clear that

“ [c] omprehensive analysis, not superficial categorization, ultimately governs. . . . Misidentifications should be carefully guarded against lest innocent persons be swept into unlawful arrests and convictions. Trained and perhaps well-intentioned police officers may too easily fall prey to the pressures and official routinization of depersonalized identifications, which could also lead to unacceptable injustices. Showup evidence must be eschewed and, at the very least, subjected to Wade hearings in these circumstances to guard against these dangers, even for in-court identifications” (Gordon, 76 NY2d at 601).

Here, we cannot conclude that the circumstances of Officer Cremin’s initial viewing were such that, as a matter of law, the subsequent identification could not have been the product of undue suggestiveness. Indeed, the initial encounter—at night, while defendant stopped for a few seconds on a fire escape some 40 to 50 feet above the ground—stands in stark contrast to the face-to-face viewing in Wharton. Moreover, this was not a situation where the officer was placed on the scene specifically to make an identification, and was therefore focused on identifying the suspect to a backup team. Although we do not suggest that this identification in fact resulted from any impropriety, that is not the test. Indeed, that is the very determination requiring a Wade hearing.

The People were required to serve CPL 710.30 (1) (b) notice. To conclude otherwise directly contravenes the simple procedure that has been mandated by the Legislature and would permit the People to avoid their statutory obligation merely because a police officer’s initial viewing of a suspect and a subsequent identification might be temporally related. Nor will we draw the courts into the countless factual disputes that such an exception portends.

Defendant’s remaining contention regarding New York’s persistent violent felony offender statute is without merit.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to preclude identification testimony granted and a new trial ordered.

R.S. Smith, J. (dissenting).

I dissent, because I think that requiring a Wade hearing in cases like this one, where the chance that the hearing will lead to the suppression of evidence is vanishingly small, is a waste of time and puts an unjustified burden on the criminal justice system.

The purpose of a Wade hearing is to decide whether a pretrial identification of the defendant violated the defendant’s constitutional rights and, if so, what the remedy should be (see United States v Wade, 388 US 218, 242 [1967]). In cases where a police officer who observed a crime identified the defendant some minutes or hours later, no court as far as I know has ever even reached the second question. Neither party has cited, the majority does not cite, and I have not been able to find any case in which any court held that an identification of this type violated a defendant’s constitutional rights.

This is not surprising, because, when a police officer has observed a crime, and a suspect is arrested shortly afterwards, getting the officer to look at the suspect as soon as possible is not only constitutionally permissible; it is a very good idea. The best way to find out whether the police have arrested the right person or not is to ask the officer who saw the event, and to ask quickly while the offender’s appearance is fresh in the officer’s mind. This procedure greatly increases the likelihood that people arrested by mistake will be set free at once, and that guilty people will be identified correctly. In this case, as the majority points out, the officer’s view of the burglar at the time of the crime was imperfect, and so a mistake in identification was possible—but delaying the postarrest identification would have increased the possibility. It would not have made sense to prevent Officer Cremin from seeing defendant until a lawyer could be found and a lineup arranged, and defendant does not argue that either counsel or a lineup was required here. (See State v Medley, 11 Wash App 491, 499, 524 P2d 466, 471 [1974] [“It is patently frivolous to contend that a law enforcement officer whose pursuit of criminal suspects is interrupted may not, a short time later, identify the suspects as the ones whose criminal conduct he has previously observed”].)

But defendant does argue, and the majority holds, that he was entitled to a Wade hearing to determine whether Officer Cremin’s identification of him was so tainted by suggestiveness that it deprived him of due process. It is theoretically possible that a due process violation could occur in such an encounter, but the possibility is remote. In People v Wharton (74 NY2d 921, 922-923 [1989]), we explained that a trained police officer’s identification of a defendant “at a place and time sufficiently connected and contemporaneous to the arrest itself as to constitute the ordinary and proper completion of an integral police procedure” was not the sort of event “ordinarily burdened or compromised by forbidden suggestiveness, warranting a lineup procedure or Wade hearing.” We pointed out in Wharton that such an observation did not entail “the kind of per se suggestive or improper bolstering present in show-up identifications by civilian witnesses” (id. at 923). The difference between police officers and civilians is significant here. An officer is much less likely than a civilian to be swayed by the assumption that a suspect who is in police custody must be guilty (cf. Wade, 388 US at 234).

In short, I think the procedure followed here was so obviously a desirable one, and the risk of suggestiveness so small, that here, as in Wharton, a Wade hearing was unnecessary. Several Appellate Division cases agree (see People v Suleman, 262 AD2d 337 [2d Dept 1999]; People v Campbell, 225 AD2d 1021 [4th Dept 1996]; People v James, 220 AD2d 370 [1st Dept 1995]; People v Starr, 221 AD2d 488 [2d Dept 1995]).

The majority limits Wharton to the situation where the officer’s “identification could not be mistaken” (majority op at 432). But Wharton does not say or imply that it is so limited, and logic does not support the limitation. The issue to be decided at a Wade hearing is not whether the officer made a mistake; that is for the jury to decide at trial. The issue is whether the postarrest identification was unduly suggestive—i.e., whether the circumstances of the identification increased the risk that the officer might err. A prompt postarrest viewing of a suspect by a police officer who saw the crime is virtually guaranteed to diminish the risk of error, not increase it.

The majority relies heavily on the text of CPL 710.30 (1) (b), which, it is true, makes no express exceptions to the requirement that the prosecution give notice when it intends to offer at trial “testimony regarding an observation of the defendant . . . by a witness who has previously identified him.” But we have already held—in Wharton and in People v Rodriguez (79 NY2d 445 [1992])—that exceptions do exist. Wharton and Rodriguez both hold, that there are cases where no Wade hearing is necessary, and that in those cases no notice under CPL 710.30 is necessary either. The question here is how the Wharton exception should be defined. I think the majority defines it too narrowly, thus making the system more complicated and cumbersome than it needs to be, and adding unnecessarily to the number of cases in which an offender walks free because police or prosecutors have slipped up in complying with a procedural rule.

Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur with Chief Judge Kaye; Judge R.S. Smith dissents in a separate opinion.

Order reversed, etc.


author: Graffeo, J.

text:
    [ 846 NE2d 794, 813 NYS2d 349]
    In the Matter of M.B. Mental Hygiene Legal Service, Appellant; Staten Island Developmental Disabilities Services Office et al., Respondents.
    Argued February 16, 2006;
    decided March 23, 2006

      POINTS OF COUNSEL

      Mental Hygiene Legal Service, Mineola (Lisa Volpe, Sidney Hirschfeld and Dennis B. Feld of counsel), for appellant. I.
    The Surrogate’s Court and appellant have ignored significant language in SCPA 1750-b, thus failing to give full meaning to the statutory amendments at issue. (Matter of B, 190 Misc 2d 581.) II. Under the case law established by this Court, the amended SCPA 1750 and the newly enacted SCPA 1750-b cannot be applied retroactively. (People v Behlog, 74 NY2d 237; People v Oliver, 1 NY2d 152; Matter of Marino S., 100 NY2d 361, 540 US 1059; Matter of Gleason [Michael Vee, Ltd.], 96 NY2d 117; Matter of Duell v Condon, 84 NY2d 773; Jacobus v Colgate, 217 NY 235; Shielcrawt v Moffett, 294 NY 180; Matter of Storar, 52 NY2d 363; Matter of Fosmire v Nicoleau, 75 NY2d 218.)

      Eliot Spitzer, Attorney General, New York City (Jean Lin, Caitlin Halligan and Daniel Smirlock of counsel), for respondent.
    I. The plain language of the Health Care Decisions Act for Persons with Mental Retardation authorizes SCPA article 17-A guardians to make all health care decisions on behalf of their wards, regardless of when the guardians were appointed. (MeCluskey v Cromwell, 11 NY 593; New Amsterdam Cas. Co. v Stecker, 3 NY2d 1; Meltzer v Koenigsberg, 302 NY 523; Finger

      Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471.) II. The legislative history of the Health Care Decisions Act for Persons with Mental Retardation confirms that the act is intended to cover SCPA article 17-A guardians appointed both before and after the effective date of the act. (Matter of Storar, 52 NY2d 363; Matter of Fosmire v Nicoleau, 75 NY2d 218; Blouin ex rel. Estate of Pouliot v Spitzer, 356 F3d 348.) III. The Appellate Division’s decision contravenes both the plain meaning and purpose of the Health Care Decisions Act for Persons with Mental Retardation. (Matter of Storar, 52 NY2d 363.)
   OPINION OF THE COURT

Graffeo, J.

Under the Health Care Decisions Act for Persons with Mental Retardation, a guardian can make health care decisions for a mentally retarded person, including the decision to terminate life-sustaining medical treatment, under carefully prescribed circumstances. The issue in this case—solely one of statutory interpretation—is whether the Act applies only to guardians appointed after its March 2003 effective date or whether it also affects the authority of persons already serving as guardians before March 2003. Based on the language and history of the Act, we conclude that the Legislature also granted existing guardians full health care decision-making authority, subject to the detailed procedures set forth in the statute.

Background

Under New York common law, a competent adult generally has the right to make health care decisions, including the right to refuse life-sustaining treatment (see Matter of Fosmire v Nicoleau, 75 NY2d 218 [1990]). If the individual suffers an illness or injury resulting in a loss of decision-making capacity, family and friends may obtain a court order authorizing the cessation of treatment if they can prove—by clear and convincing evidence of the patient’s previously-expressed views—that the individual would have refused life-sustaining treatment if capable of making that decision (id. at 225).

Although a guardian of a mentally retarded person was imbued under the common law with the authority to make a broad spectrum of health care decisions, this authority did not encompass the power to end life-sustaining medical treatment. Viewing the guardian’s role as comparable to that of a parent— who could not deprive a child of lifesaving treatment—this Court concluded in Matter of Storar (52 NY2d 363 [1981], cert denied 454 US 858 [1981]) that the guardian of a 52-year-old mentally retarded man lacked the authority to order the cessation of blood transfusions. Predicating our analysis on principles developed under the common law, we indicated that the Legislature could establish procedures governing the discontinuance of life-sustaining treatment for incompetent individuals if it determined this was desirable or appropriate, noting that any “change should come from the Legislature” (id. at 383).

In the wake of Storar, a distinction arose between the common-law rights of competent adults, who could make their wishes concerning end-of-life care known to family and friends, and mentally retarded persons who had never been competent to make their own health care decisions and for whom life-sustaining treatment could not be refused. When these mentally retarded individuals became irreversibly, terminally ill they were, in effect, ineligible for hospice or other palliative care because their guardians were unable to refuse more intrusive, acute medical treatments aimed at extending life for as long as possible.

As a consequence of this disparity, family members, caregivers and advocacy groups for the mentally retarded sought relief from the Legislature. They shared the stories of mentally retarded patients forced to suffer painful, intrusive life-sustaining medical treatments after it was clear that they would never regain any quality of life because the requests of their guardians (usually parents or siblings) to end life-sustaining measures could not be honored. This was the situation the Legislature sought to remedy when it enacted the Health Care Decisions Act for Persons with Mental Retardation (HCDA) (see Bill Jacket, L 2002, ch 500).

The Statutory Scheme

The HCDA was passed by both houses and signed by the Governor in the fall of 2002 but it did not become effective until 180 days later—March 16, 2003 (L 2002, ch 500, § 4). The legislation added a new subdivision to Surrogate’s Court Procedure Act § 1750, the provision that addresses the guardianship of mentally retarded persons. Before the enactment of the HCDA, section 1750 stated that, upon the certification of appropriate medical personnel that a mentally retarded person was “incapable to manage him or herself and/or his or her affairs by reason of mental retardation and that such condition is permanent in nature or likely to continue indefinitely,” a guardian “of the person or of the property or of both” could be appointed (SCPA 1750 [1]). A guardianship “of the person” was viewed as authorizing some degree of medical decision-making power, but the scope of this authority was unclear, particularly in the aftermath of Storar.

The new provision—SCPA 1750 (2)—imposes an additional certification requirement, clearly applicable to all future guardianship proceedings. Along with filing a certification from medical professionals that the mentally retarded person is incapable of managing his or her affairs, prospective guardians now must also file a “specific determination by such [medical personnel] as to whether the mentally retarded person has the capacity to make health care decisions, as defined by [Public Health Law § 2980 (3)], for himself or herself’ (SCPA 1750 [2]). In the event the mentally retarded individual has the ability to make health care decisions, the HCDA allows a guardian to be appointed to make other types of decisions. If not, the guardian is granted full medical decision-making power. In the latter event, the HCDA removed any uncertainty concerning the scope of that authority, clarifying that health care decisions include “any decision to consent or refuse to consent to health care” (see SCPA 1750-b [1], cross-referencing Public Health Law § 2980 [6]). Thus, under the HCDA, a guardian can, under certain circumstances, order the cessation of hfe-sustaining medical treatment for a mentally retarded person who never had capacity to make such a decision.

The HCDA also amended article 17-A of the Surrogate’s Court Procedure Act by adding a new section 1750-b governing health care decision-making for mentally retarded persons. Section 1750-b establishes a “ [d] ecision-making standard” requiring that guardians base all health care decisions “solely and exclusively on the best interests of the mentally retarded person and, when reasonably known or ascertainable with reasonable diligence, on the mentally retarded person’s wishes, including moral and religious beliefs” (SCPA 1750-b [2] [a]). This provision lists the factors that must be considered in determining the mentally retarded person’s best interests, which include “the dignity and uniqueness” of the individual; “the preservation, improvement or restoration of the . . . person’s health”; “the relief of the mentally retarded person’s suffering by means of palliative care and pain management”; the effect of treatment, including artificial nutrition and hydration, on the mentally retarded person; and the patient’s overall medical condition (SCPA 1750-b [2] [b]). A medical decision cannot be based on financial considerations or a failure to afford the mentally retarded individual the respect that would be afforded any other person in the same circumstances (SCPA 1750-b [2] [c]). In addition, the statute imposes on the guardian “the affirmative obligation to advocate for the full and efficacious provision of health care, including life-sustaining treatment” (SCPA 1750-b [4]), defined as “medical treatment which is sustaining life functions and without which, according to reasonable medical judgment, [the] patient will die within a relatively short time period” (see SCPA 1750-b [4], cross-referencing Mental Hygiene Law § 81.29 [e]).

In the event a guardian contemplates the withdrawal or withholding of life-sustaining treatment, SCPA 1750-b imposes a decision-making procedure that must be followed before the decision can be carried out. The threshold requirement is that the mentally retarded person’s physician confirm to a reasonable degree of medical certainty, after consultation with another physician or a licensed psychologist, that the person currently lacks the capacity to make health care decisions (SCPA 1750-b [4] [a]). The attending physician and another concurring physician must further attest that the mentally retarded person has one of three types of conditions: a terminal condition, permanent unconsciousness or “a medical condition other than such person’s mental retardation which requires life-sustaining treatment, is irreversible and which will continue indefinitely,” and life-sustaining treatment imposes or would impose an extraordinary burden on the patient in light of the patient’s medical condition and the expected outcome of the life-sustaining treatment (SCPA 1750-b [4] [b] [i], [ii]). In the case of the withdrawal or withholding of artificially provided nutrition or hydration, the two physicians must also confirm that “there is no reasonable hope of maintaining life” or that the artificial nutrition or hydration itself “poses an extraordinary burden” on the patient (SCPA 1750-b [4] [b] [iii]). These conclusions by medical professionals are a condition precedent to any valid decision to end life-sustaining treatment—without them, life-sustaining treatment must be afforded to the patient.

If the requisite medical conclusions are made, the next step is for the guardian to express a decision to end life-sustaining treatment either in writing, signed by a witness, or orally in the presence of the attending physician and another witness, and the decision must be included in the patient’s chart. The physician can then issue the appropriate medical orders or object to the guardian’s decision but, in either case, the decision to end life-sustaining treatment cannot be implemented for 48 hours (SCPA 1750-b [4] [e]). During that time, the physician must notify various parties including, in some circumstances, the mentally retarded person. The Act grants a number of persons and organizations automatic standing to lodge an objection— the mentally retarded person, a parent or adult sibling, the attending physician, any other health care practitioner providing services to the patient, the director of a residential facility that formerly cared for the patient, the Commissioner of the Office of Mental Retardation and Developmental Disabilities (OMRDD), and, if the patient was treated in a residential facility, the Mental Hygiene Legal Service (MHLS) (SCPA 1750-b [5]).

Upon objection, the guardian’s decision is suspended (unless the suspension would itself result in the death of the patient) while a judicial proceeding is conducted “with respect to any dispute arising under this section, including objecting to the withdrawal or withholding of life-sustaining treatment because such withdrawal or withholding is not in accord with the criteria set forth in this section” (SCPA 1750-b [6]). If at the conclusion of the 48-hour period there is no objection the guardian’s decision to withdraw or withhold life-sustaining treatment is put into effect, without judicial involvement.

Thus, the HCDA clarifies that guardians can make health care decisions for mentally retarded persons who themselves were never competent to make those decisions, including a decision to end life-sustaining treatment. But it imposes a series of procedural hurdles—intended to safeguard the interests of the patient and prevent an improvident decision by the guardian— that must be satisfied prior to the implementation of such a decision.

The issue now presented to us is whether the Legislature intended to authorize guardians appointed prior to the effective date of the HCDA to make health care decisions for mentally retarded persons in accordance with the Act’s strict decision-making structure without having to obtain, through a separate judicial proceeding, an amended guardianship order that specifically recognizes their authority as encompassing the power to end life-sustaining treatment. We conclude that the Legislature did intend that authorization.

Facts

M.B., a profoundly retarded 42-year-old man with Down’s syndrome who never possessed the capacity to make health care decisions, lived with his mother until her death in December 2002. In January 2003, M.B.’s brother R.B. was appointed his guardian under article 17-A of the Surrogate’s Court Procedure Act. At that time, the HCDA had been passed but was not yet effective. The guardianship decree therefore named R.B. as “guardian of the person” of M.B. but the court did not specifically address R.B.’s authority to make health care decisions for M.B.

After his mother’s death, M.B. lived in a residential facility specializing in the care of mentally retarded persons. He later became seriously ill and was transferred to Staten Island University Hospital where he was diagnosed with pneumonia, hypertension and hypoxia. His physical condition steadily declined to the point that he lost consciousness and was placed on a respirator, with a nasal-gastric tube inserted for feeding and hydration. M.B.’s physicians concluded that his illness was terminal, his condition irreversible and that the life-sustaining treatment currently being provided imposed a substantial burden on him. Based on the physicians’ opinions concerning M.B.’s medical condition and prognosis, on October 14, 2003 R.B. requested that the respirator be disconnected, with the understanding that this would soon result in M.B.’s death. As required by the HCDA, the hospital notified various parties of the decision, including OMRDD and MHLS. The next day, MHLS filed a written notice of objection, which resulted in suspension of R.B.’s order to discontinue life-sustaining treatment.

Uncertain of how to proceed, R.B. and his sister appeared pro se in Richmond County Surrogate’s Court on October 17, 2003, asking the Surrogate to authorize the hospital to honor R.B.’s request, but the matter was adjourned so that MHLS could initiate formal proceedings. By order to show cause and petition dated October 20, 2003, MHLS sought a declaration that R.B. lacked the authority to issue an order ending life-sustaining treatment because he was appointed guardian two months before the effective date of the HCDA. Having retained private counsel, R.B. opposed the objection. The New York Attorney General’s office appeared on behalf of the Staten Island Developmental Disabilities Services Office (SIDDSO), a regional division of OMRDD. Initially taking no position on the controversy, SIDDSO ultimately supported R.B.’s position.

At a proceeding three days later, MHLS asserted that it agreed with R.B.’s conclusion that the cessation of life-sustaining treatment would be in the best interests of M.B. and that it was satisfied that the guardian had complied with all of the procedural and substantive safeguards required under the HCDA. MHLS explained that its objection was not predicated on the facts of this particular case, but on its interpretation that the HCDA did not empower guardians appointed prior to March 16, 2003 to make decisions involving the cessation of life-sustaining treatment for mentally retarded persons. Rather, MHLS argued that these previously-appointed guardians could not exercise such authority unless they individually petitioned Surrogate’s Court for an expansion of their guardianship power. As for the current dilemma facing M.B.’s guardian, MHLS contended that the proceeding could be converted into a guardianship expansion proceeding so that R.B. could be granted the authority to render end-of-life decisions for his brother.

R.B.’s attorney countered that it was evident from the plain language and history of the HCDA that the Legislature had intended to extend to all guardians, regardless of the date of appointment, the power to request the termination of life-sustaining treatment under the new procedures set forth in SCPA 1750-b. R.B. reasoned that, had the Legislature intended to require previously-appointed guardians to petition for new powers, it would surely have said so, rather than including language in the HCDA suggesting precisely the opposite.

Surrogate’s Court rejected MHLS’ objection, concluding that R.B. was empowered under the HCDA to order the cessation of life-sustaining treatment for his brother, even though R.B.’s guardianship order was issued before the effective date of the Act. Pursuant to the Surrogate’s order, M.B. was removed from the respirator and died within hours.

Acknowledging that M.B.’s death mooted its objection, MHLS nonetheless pursued an appeal, contending that the case fell within the exception to the mootness doctrine as it was capable of repetition, likely to evade review and involved a substantial legal issue. Considering the appeal under the mootness exception, the Appellate Division reversed and granted MHLS’ petition. Focusing on the legislative history of the HCDA, a majority of the Court held that the Legislature had not intended to extend to existing guardians the end-of-life decision-making powers now recognized in the HCDA. The majority was concerned that mentally retarded persons with guardians appointed prior to the effective date of the new legislation lacked an opportunity to have their capacity to make health care decisions specifically considered. If the legislation was interpreted to apply to all guardians, the majority believed that mentally retarded individuals who might be able to make such decisions for themselves would not be adequately protected. The Court therefore concluded that previously-appointed guardians must petition for enlargement of guardianship authority so that the capacity issue could be directly explored for each mentally retarded person. The dissent would have affirmed the order denying the objection, reasoning that the plain language of the HCDA indicated a legislative intent to authorize existing guardians to make all necessary health care decisions, including end-of-life decisions. The Appellate Division granted SIDDSO leave to appeal to this Court.

After the Appellate Division ruling, both houses of the Legislature passed bills that, if enacted, would have altered the guardianship enlargement procedure envisioned by the Appellate Division majority (2005 NY Senate Bill S 5803; 2005 NY Assembly Bill A 8906). Both the Senate and Assembly sponsors of the new legislation stated that the legislative intent of the HCDA had been to retroactively confer full health care decision-making authority on the tens of thousands of existing guardians without a requirement that they seek new guardianship orders from the courts (Mem in Support of Senator Hannon, Bill S 5803; Mem in Support of Assembly Member P. Rivera, Bill A 8906). Although he agreed with the sponsors’ view of the scope of the HCDA, the Governor vetoed the legislation, concluding that the proposed amendment was premature in light of the pending appeal to this Court (Governor Pataki Veto Message No. 121 of 2005).

Analysis

Like the Appellate Division, we address this appeal under the exception to the mootness doctrine because the issue presented is substantial, likely to recur and involves a situation capable of evading review (Matter of Hearst Corp. v Clyne, 50 NY2d 707 [1980]). Both SIDDSO and MHLS emphasize that this case presents an issue of statutory interpretation. MHLS did not contend below and does not assert here that there is any constitutional impediment to interpreting the legislation in the manner urged by SIDDSO. As such, our task—as it is in every case involving statutory interpretation—is to ascertain the legislative intent and construe the pertinent statutes to effectuate that intent.

We begin with the statutory text, which is the clearest indicator of legislative purpose (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). If the “language ... is clear and unambiguous, courts must give effect to its plain meaning” (State of New York v Patricia II., 6 NY3d 160, 162 [2006], quoting Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 91 [2001]). When the terms of related statutes are involved, as is the case here, they must be analyzed in context and in a manner that “harmonize[s] the related provisions . . . [and] renders them compatible” (Tall Trees, 97 NY2d at 91).

In this case, SIDDSO relies on two provisions of the HCDA as evidence that the Legislature intended to grant existing guardians the right to make end-of-life decisions. First, SIDDSO points to the new subdivision added to SCPA 1750. After directing that guardianship proceedings include a certification by medical personnel concerning the mentally retarded person’s capacity to make health care decisions, the Legislature provided: “The absence of this determination in the case of guardians appointed prior to the effective date of this subdivision shall not preclude such guardians from making health care decisions” (SCPA 1750 [2]). The Legislature thus explicitly exempted existing guardians from the new requirement that guardianship proceedings specifically address the mentally retarded person’s capacity to make health care decisions.

Second, SIDDSO cites the language in the first subdivision of the new SCPA 1750-b, entitled “Scope of authority,” which provides:

“Unless specifically prohibited by the court after consideration of the determination, if any, regarding a mentally retarded person’s capacity to make health, care decisions, which is required by section [1750] of this article, the guardian of such person appointed pursuant to section [1750] of this article shall have the authority to make any and all health care decisions, as defined by [Public Health Law §2980 (6)], on behalf of the mentally retarded person that such person could make if such person had capacity. Such decisions may include decisions to withhold or withdraw life-sustaining treatment, as defined in [Mental Hygiene Law § 81.29 (e)]. The provisions of this article are not intended to permit or promote suicide, assisted suicide or euthanasia; accordingly, nothing in this section shall be construed to permit a guardian to consent to any act or omission to which the mentally retarded person [ ] could not consent if such person had capacity” (SCPA 1750-b [1] [emphasis added]).

We agree with SIDDSO that the phrasing of the first sentence of section 1750-b (1) is telling—not only in what it says but also in what it does not say. The Legislature did not declare that a guardian has authority to make medical decisions only if the court has expressly authorized the guardian to do so—language one would expect to find if the Legislature had intended to require existing guardians to petition for enlargement of their power as MHLS maintains. Instead, the Legislature has provided that all guardians “have the authority to make any and all health care decisions,” “[u]nless specifically prohibited by the court” (SCPA 1750-b [1] [emphasis added]).

The phrase “if any” in the beginning of section 1750-b (1) further illuminates the legislative intent. Since guardians appointed after the effective date of the HCDA must include a certification concerning the mentally retarded person’s health care decision-making capacity, this clause—which clarifies that health care decisions can be made even in the absence of such certification—can only be understood as referring to the authority of existing guardians who would not have obtained this certification. This interpretation of section 1750-b (1) is consistent with the clear statement in the newly-added section 1750 (2) exempting guardians appointed prior to the effective date of the HCDA from the specific health care decision-making competency certification requirement. Read together, sections 1750 (2) and 1750-b (1) reflect the intention of the Legislature to authorize guardians appointed prior to March 16, 2003 to make end-of-life decisions, provided those decisions are made pursuant to the exacting procedures specified in section 1750-b. The legislation does not indicate that existing guardians are to petition for new guardianship orders specifically expanding their health care decision-making authority.

The legislative history of the HCDA supports this construction. The Assembly sponsor stated that the purpose of the bill was to “allow the legally appointed guardians of mentally retarded individuals to have the authority to make medical decisions on behalf of such person, including decisions dealing with the withdrawal or withholding of life-sustaining treatment” (Mem in Support of Assembly Member Luster, 2002 NY Assembly Bill A 8466D [NY State Legis Retrieval Sys]). In his memorandum in support, the Senate sponsor repeatedly notes that the legislation was not viewed as a significant change in the law but was a clarification of the power the Legislature had always intended guardians of mentally retarded persons to possess under SCPA article 17-A. The sponsor stated: “This bill clarifies that guardians of persons with mental retardation have the authority to make health care decisions, including decisions regarding life-sustaining treatment under certain circumstances” (Mem of Senator Hannon in Support of NY Senate Bill S 4622B, 2002 NY Legis Ann, at 279). Echoing the language in the legislation, the Senate sponsor asserted that guardians “have the authority”—not that guardians must now seek to obtain health care decision-making authority. He described the purpose of the legislation as follows:

“In general, the bill reflects four overarching motives: (1) to clarify that decisions regarding life-sustaining treatment are part of the natural continuum of all health care decisions, (2) to allow decisions to end life-sustaining treatment only where the need is clearest . . . , (3) to utilize existing legal standards wherever possible, and (4) to maintain judicial oversight of close decisions, with a statutory structure incorporating a workable standard for the court” (id. at 280 [emphasis added]).

Thus, the role of the courts is described as “oversight of close decisions” relating to medical treatment, a clear reference to the objection process and resulting judicial proceeding referenced in section 1750-b (5) and (6).

The Commission on Quality of Care for the Mentally Disabled likewise observed that the bill would “clarify that guardians can make medical decisions on behalf of persons with mental retardation based upon the best interests and reasonably known wishes of the person[s] . . . including, when appropriate, withdrawal of life-sustaining treatment” (Letter from Commn on Quality of Care for Mentally Disabled to Counsel to Governor, Bill Jacket, L 2002, ch 500, at 10). Nowhere in the extensive Bill Jacket is there any suggestion that the Legislature intended previously-appointed guardians to have to initiate new court proceedings in order to acquire such authority. Such an interpretation would be inconsistent with the Legislature’s repeatedly expressed view that it was clarifying the powers it vested in article 17-A guardians of mentally retarded persons, notwithstanding this Court’s holding in Storar.

To be sure, the HCDA imposes a new obligation on guardians appointed after its effective date that was not—and is not— applicable to previously-appointed guardians. In addition to the long-standing requirement that medical personnel certify that the mentally retarded person is “incapable to manage him or herself and/or his or her affairs” (SCPA 1750 [1])—a certification all previously-appointed guardians would have filed—the HCDA now requires that prospective guardians also file a certification by medical personnel specifically addressing the mentally retarded person’s capacity to make health care decisions (SCPA 1750 [2]). Previously-appointed guardians are expressly exempted from filing this health care capacity certification (SCPA 1750 [2]).

It does not follow—as MHLS argues—that the Act must be construed to require existing guardians to obtain new appointment orders because any other interpretation would be inconsistent with the Legislature’s overriding concern that the rights of mentally retarded persons, including those capable of making health care decisions, be protected. This argument turns on the assumption that the Legislature’s decision to add a health care capacity certification requirement to the guardianship appointment procedure going forward indicated a belief that the former procedure was inadequate. This assumption is not supported by the statutory scheme or the pertinent legislative history. After all, each existing guardian was appointed based on a certification that the mentally retarded person was “incapable to manage him or herself and/or his or her affairs” (SCPA 1750 [1]). And the history shows that the Legislature did not view the prior appointment procedure as flawed—it merely sought to clarify the decision-making powers of future guardians.

Critically, the HCDA does not exempt previously-appointed guardians from any of the strict SCPA 1750-b procedures governing specific health care decision-making, including end-of-life decision-making. If a guardian seeks to withhold or withdraw life-sustaining treatment, the threshold step in the statutory decision-making structure is the requirement that the patient’s attending physician, in consultation with at least one other medical professional, confirm that the patient lacks the capacity to make health care decisions (SCPA 1750-b [4] [a]). Because it requires two health care professionals to assess the mentally retarded person’s capacity to make health care decisions, this requirement mimics the health care capacity certification undertaken in new guardianship proceedings. Thus, newly-appointed guardians will have to address the health care capacity issue twice (when initially appointed and again when making end-of-life decisions) while previously-appointed guardians will do so only when making a specific decision to end life-sustaining treatment. But the fact remains that the capacity of each mentally retarded person to make health care decisions will be explored before any decision by any guardian to end life-sustaining treatment is implemented, no matter when the guardian was appointed. In every meaningful respect, the authority of existing and newly-appointed guardians is exercised in an identical fashion under the HCDA because all guardians must comply with each step of the decision-making structure in SCPA 1750-b.

MHLS reads the first clause in the new section 1750-b (1)— “[u]nless specifically prohibited by the court”—as preserving the court’s supervisory role over medical decision-making by guardians. This is true. Going forward, under the health care capacity certification process applicable to guardians appointed after the effective date of the HCDA, courts must consider the mentally retarded person’s capacity to make health care decisions and, in appropriate cases, may limit the guardian’s authority in that realm. Moreover, courts are clearly empowered to resolve disputes concerning particular health care decisions made by guardians. But, by choosing to phrase the power granted guardians expansively—stating that they have health care decision-making authority unless the court specifically states otherwise—the Legislature recognized that guardians already possess that authority.

MHLS attempts to limit the import of the phrase “if any” in section 1750-b (1), arguing that it means only that existing guardians—who it claims must petition the court to expand their powers—are relieved from filing the specific health care capacity certification that new guardians must file under SCPA 1750 (2). But this interpretation undercuts the primary premise of MHLS’ argument—that the Legislature could not have intended to authorize all guardians, even those appointed prior to the HCDA, to make health care decisions in the absence of certifications specifically addressing health care decision-making capacity. If, as MHLS suggests, the Legislature meant for existing guardians to apply for expansion of their power to specifically encompass health care decision-making, why did it expressly exempt them from the central requirement of that procedure by dispensing with the certification process through which the capacity of the mentally retarded person is determined?

In essence, MHLS suggests that SIDDSO’s interpretation of the HCDA cannot be effectuated because this would result in distinctions between the obligations of existing and future guardians. However, MHLS relies on a construction that also treats previously-appointed guardians differently from new guardians since MHLS recognizes that SCPA 1750 (2) relieves the former from the health care decision-making capacity certification requirement. Since both parties proffer interpretations that result in differences between the two classes of guardians, the presence of such distinctions does not itself provide us with a basis to resolve the controversy.

The Legislature made a policy decision that newly-appointed guardians need to meet a specific health care capacity certification requirement. Given the thousands of previously-appointed guardians, state lawmakers chose not to impose the new capacity certification requirement on existing guardians or otherwise require them to commence court proceedings seeking expansion of guardianship authority. In light of the significant procedural protections afforded in SCPA 1750-b, the Legislature concluded that the rights of mentally retarded persons would be safeguarded absent such a requirement.

MHLS is certainly correct that the HCDA provides for judicial oversight of end-of-life decisions by guardians. But, in the case of previously-appointed guardians, such judicial oversight occurs when a guardian reaches an end-of-life decision, the necessary parties are notified, and someone objects to the decision. The Legislature determined that it would serve no significant purpose to require each previously-appointed guardian to commence proceedings for the expansion of health care decision-making authority (which would have to occur even if no issue concerning end-of-life decision-making is pending or even likely to arise) given the procedural steps all guardians must follow under SCPA 1750-b, which includes an inquiry into the mentally retarded person’s capacity to make health care decisions.

MHLS responds that this inquiry is not equivalent to the initial guardianship certification process contemplated under the new SCPA 1750 (2) because it occurs after the mentally retarded person is in medical crisis and therefore fails to adequately account for the possibility that the patient might once have had the capacity to make health care decisions. But whether judicial intervention is sought in the context of a guardianship expansion proceeding or a SCPA 1750-b objection, the court must render a determination based on the present capacity of the mentally retarded person—not abilities the patient may have once possessed. MHLS’ contrary view of the statute would, in effect, prevent any existing guardian from obtaining the power to withdraw life-sustaining treatment if the patient was already in a terminal medical crisis when the HCDA became effective, excluding a class of patients—ironically, those in immediate need of the rights afforded by the legislation— from the protections of the HCDA, a result not intended by the Legislature.

Moreover, in circumstances where the mentally retarded person formerly had some capacity to make medical decisions, the guardian is nonetheless required to base medical decision-making “on the best interests of the mentally retarded person and, when reasonably known or ascertainable with reasonable diligence, on the mentally retarded person’s wishes, including moral and religious beliefs” (SCPA 1750-b [2] [a]). Thus, the wishes of a mentally retarded individual who once had capacity to make health care decisions are not disregarded under the new statutory scheme.

In sum, while MHLS and the Appellate Division are understandably concerned that the interests of mentally retarded individuáis be scrupulously protected, the Legislature designed the statutory scheme to meet that important objective. First, SCPA 1755 authorizes any person (including a mentally retarded person) at any time to seek judicial review of the scope of a guardianship order and “request[ ] modification of such order in order to protect the mentally retarded . . . person’s . . . personal interests.” In other words, even prior to the enactment of the HCDA, the authority granted a guardian with respect to a particular mentally retarded person was subject to judicial review in the event of a concern regarding the guardian’s exercise of any aspect of that authority, including health care decision-making. The HCDA did not alter this procedure. As such, a mentally retarded individual who has health care decision-making capacity—or any party on his or her behalf, including MHLS—may petition the court for curtailment of the existing guardian’s power in that arena.

Second, as this case demonstrates, the notification and objection process in SCPA 1750-b provides substantial protection to mentally retarded patients. Guardians must base health care decisions on the advice of qualified medical professionals and must follow a multistep procedure before any end-of-life decision will be honored by a health care facility. In any case where a disagreement arises between the guardian and one of a host of other interested parties (family members, the patient’s medical caregivers, OMRDD, a residential director of a facility or MHLS), the statute mandates that the conflict be resolved by the courts. MHLS does not dispute the efficacy of this procedure, nor does it assail the Legislature’s choice not to require judicial approval of health care decisions in circumstances where all parties agree that the guardian is acting in the mentally retarded individual’s best interests. Although the Legislature could have charted a different course, the decision not to require previously-appointed guardians to seek new appointment orders was for the Legislature to make and, absent constitutional challenge, it must be upheld by this Court.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the order of Surrogate’s Court reinstated. The certified question should not be answered upon the ground that it is unnecessary.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith concur.

Order reversed, etc.

      . In addition to the rights recognized under the common law, a competent adult can, of course, reheve family and friends of the burden of seeking such a court order by executing a health care proxy pursuant to Public Health Law § 2981 naming a surrogate health care decision-maker who can make binding decisions in the event the appointing adult loses the capacity to make such decisions. A person can also express his or her wishes regarding life-sustaining treatment in what is known as a “hying will.”

      . SIDDSO is a division of the state Office of Mental Retardation and Developmental Disabilities. OMRDD operates 14 regional DDSOs in New York State, which coordinate and deliver services to mentally retarded and developmentally disabled individuals (and their families) whether they reside in state-operated facilities, group homes or family settings (OMRDD Information for Individuals and Families <http://www.omr.state.ny.us/ hp_individuals.jsp> [last updated Feb. 14, 2006], cached at <http:// www.courts.state.ny.us/reporter/webdocs/NYS-OMRDD_Families.htm>).

      . In granting leave, the Appellate Division certified the question: “Was the opinion and order of this court dated June 13, 2005, properly made?”

      . In this case, MHLS took the position that R.B. could apply for enlarged guardianship powers under SCPA 1750 (2), thereby obtaining authority to make medical decisions for M.B. and to withdraw life-sustaining treatment, even though M.B. was already in medical crisis, urging the court to pursue this procedural route rather than the objection procedure set forth in SCPA 1750-b (5) and (6).