On July 6, 2012, a unanimous panel of the New York Appellate Division, 4th Department, rejected a challenge to the validity of the New York Marriage Equality Law, which was enacted on June 24, 2011. New Yorkers for Constitutional Freedoms v. New York State Senate, No. CA 12-00313, Opinion 644.
Opponents of the Marriage Equality Act (MEA) sued for a declaration that the law was not validly enacted because (1) the Republican caucus of the Senate held closed-door meetings at which NYC Mayor Michael Bloomberg and Governor Andrew Cuomo were present to discuss the bill, (2) the governor's issuance of a "message of necessity" so that the legislature could vote on the bill without allowing for three days for members to study the final text was "ultra vires" (beyond his authority), and (3) by locking down part of the state capitol building during deliberations, thus preventing the plaintiffs from accessing particular senators, the Senate violated their freedom of speech.
Supreme Court Justice Robert Wiggins (Livingston County) granted defendants' motion to dismiss the second and third claims, as well as dismissing the Attorney General as a co-defendant in the case, but had refused to dismiss the first claim, holding that the state's Open Meetings Law (OML) may have been violated. Justice Wiggins accepted the plaintiffs' argument that a meeting of the Republican caucus that also included non-Republicans lost the shelter of the exemption in the OML for private caucuses. The exemption states that a private party caucus does not lose the exemption if the caucus invites "guests" to its meeting, but the plaintiffs argued to limit the exemption for "guests" to those who belong to the same party as the caucus members.
In unanimously reversing Justice Wiggins and ruling that the Senate did not violate the law, Justice Eugene Fahey wrote for the court that the plain meaning of the statute did not in any way qualify the term "guests" to be limited to members of the same party as the caucus. A Senate party caucus can invite anybody as a guest other than a member of the legislature from a different party, said the court. Since neither Mayor Bloomberg nor Governor Cuomo were members of the legislature, they could be invited as guests without the caucus losing its exemption from the requirement that public business be conducted in public.
Furthermore, no public business was conducted at the meeting, Justice Fahey point out. There is no allegation that the Republican caucus — which by itself constituted a quorum of the Senate — took any votes at that meeting. The meeting was an occasion for the mayor and the governor to lobby the Republican Senators to support the bill. Nothing in the law designates lobbying as "public business," and there is no precedent requiring that meetings between groups of legislators and lobbyists to discuss pending legislation have to take place in public. "Nowhere does the verified complaint allege that the Republican Conference agreed to pass the MEA at those meetings," wrote the court, "nor does the verified complaint allege that the Republican Conference essentially arranged for a close vote on the MEA by issuing four of its Senators a 'pass' to support that legislation." One suspects that this statement responds to an argument made by plaintiffs in response to defendants' appeal.
Even if the OML was violated, said the court, that would not by itself justify invalidating the Marriage Equality Law. The statute says that the court has the power, "in its discretion, upon good cause shown," to declare that a violation of the law justifies declaring the subsequently enacted legislation "void." Here, the court said that the plaintiffs failed to show "good cause" for voiding the law.
"Plaintiffs' contentions on this point distill to claims of prejudice arising from the mere fact of the OML violations, and from the changes in the law that followed the passage of the MEA. Plaintiffs do not, however, contend that the alleged OML violations were the catalyst for the passage of the MEA. In fact, the various news articles attached as exhibits to the verified complaint detail the intense lobbying of individual Senators with respect to the MEA, and note that both proponents and opponents of the Bill took a similar approach of targeting potential swing votes on the issue. There is no allegation that the lobbying of individual Senators violated the OML and, given their failure to link the alleged OML violations to the enactment of the MEA, which was approved at a regular session of the Senate that was open to the public, we conclude that plaintiffs failed to show good cause why we should exercise our discretion to nullify the MEA."
The court directed that judgment be entered declaring that "defendant New York State Senate did not violate the OML in enacting the MEA and that marriages performed thereunder are not invalid."