After the Marriage Equality Law was enacted by the New York legislature last summer, some opponents of the law filed a lawsuit in Livingston County Supreme Court, seeking a declaration that the law was invalidly enacted and an injunction striking it from the statute books. Their lawsuit, titled New Yorkers for Constitutional Freedom v. New York State Senate, No. 807-2011, was assigned to Acting Justice Robert B. Wiggins. Their case rested on two contentions: first, that Governor Andrew Cuomo's "Notice of Necessity," a procedural device to allow the Senate to proceed to a vote immediately after the final negotiations over the language of the bill, was constitutionally defective; and, second, that a meeting of the Senate Republicans with Governor Cuomo behind closed doors to discuss the bill violated the Open Meetings Law, which requires official public business to be conducted in the open. In a decision signed on November 18 and just made public, Justice Wiggins granted the defendants' motion to dismiss the first claim, but denied the motion to dismiss the second.
Justice Wiggins was careful to state at the outset that his opinion was not about the issue of same-sex marriage. "This Court is limited to the questions raised concerning the procedures followed by the Legislature in passing this Bill," he wrote. "It would be easy to construe any decision as a statement on the ultimate issue, and this decision can not and will not make such a statement." But some of the heated language he used later in the opinion departs from the air of neutrality he sought to create at the outset.
Justice Wiggins first addressed the alleged violation of the state constitutional requirement (Art. III, Sec. 14), that any bill considered by the legislature be put into print and placed on the desks of the legislators for three days prior to a vote, unless the Governor certifies facts requiring an immediate vote. Last June, negotiations over the final language for the Marriage Equality bill continued right up to Friday afternoon, June 24, and a vote was taken that evening. Actually, two bills were voted upon in the Senate. One was the bill that had been introduced by the Governor much more than three days before and had been approved in the Assembly, and this bill easily meets the constitutional requirement. The second bill resulted from language and substance negotiations that continued until Friday afternoon. That bill was also put to a vote that same evening in both Houses, making various modifications and additions to the Governor's program bill. It is this second bill that raises issues under the 3-day rule, since its final form was not printed up and distributed to legislators three days in advance of the vote.
The Governor's certification stated: ""The facts necessitating an immediate vote on the bill are as follows: This bill would amend the domestic relations law to grant same-sex couples the long overdue right to enter into civil marriages in New York. The continued delay of the passage of this bill would deny over 50,000 same-sex couples in New York critical protections currently afforded to different-sex couples, including hospital visitation, inheritance and pension benefits." The plaintiffs argued that this "certification" does not describe any sort of emergency, stating no reason why a vote could not be delayed for three days.
Justice Wiggins agreed with that argument. "Logically and clearly this cite by the Governor is disingenuous," he wrote. "The review of such concept-altering legislation for three days after generations of existing definitions would not so damage same sex couples as to necessitate an avoidance of rules meant to ensure full review and discussion prior to any vote."
He definitely has a point. The compromise language hammered out in the heat of negotiations in the final week of consideration of the same-sex marriage issue was presented with little opportunity for public scrutiny or substantive debate as to its effect or ramifications. Many of us were left puzzled and speculating about the impact the language would have, for example, on the interpretation and enforcement of the state's public accommodations law, out if which it appeared to carve a new exception. However, Justice Wiggins concluded, since the Senate voted to accept the Governor's certification and proceed to an immediate vote on the bill, the court did not have authority to nullify it, pursuant to the Court of Appeals' ruling in Maybee v. State of New York, 4 N.Y.3d 415. In that case, the Court of Appeals said the determination whether there was a necessity for immediate legislative action was up to the governor, not to be second-guessed by the courts. Essentially, it is a political rather than a legal question.
However, that did not stop Justice Wiggins from blasting the State for the arguments it made in its brief supporting the motion to dismiss. "It is ironic," he wrote, "that much of the State's brief passionately spews sanctimonious verbiage on the separation of powers in the governmental branches, and clear arm-twisting by the Executive on the Legislature permeates this entire process." It is not clear what Justice Wiggins means by "arm-twisting," although the use of that term to characterize the lobbying that the Governor and others did to pick up a handful of Republican votes in the Senate necessary to bring the measure to a vote and pass it betrays some bias, in light of the lack of a hearing record on what actually went on. Courts are not, after all, supposed to rely for their factual findings on media reports, but rather on evidence presented in open court under oath and subject to cross-examination. This was a motion to dismiss. The court is only dealing with allegations by the parties at this point, not evidence.
Turning to the Open Meetings challenge, Justice Wiggins commented, "There is no demonstration that the public welfare on this issue required secrecy. The question then before this Court is: does this apparent disregard for the open doors requirement authorize Judicial action?"
Justice Wiggins reviewed pertinent provisions of the Public Officers Law. Section 100 declares the necessity that public business "be performed in an open and public manner." Public Officers Law Section 103 exempts "Executive Sessions" of public bodies from this requirement, but Justice Wiggins found that the challenged meeting between the Senate Republican caucus and the Governor was not an "Executive Session," an uncontroversial conclusion, because no Democratic members of the Senate were invited to be present, so it could not be a legislative session at all.
Section 108 provides more exemptions, including "the deliberation of political committees, conferences and caucuses defined as a private meeting of the Senate or Assembly of the State of New York,… who are members or adherents of the same political party, without regard to (I) the subject matter…, (ii) the majority or minority status…, or (iii) whether such political committee, conferences and caucuses invite staff or guests to participate." In other words, when the members of one party in the legislature meet to discuss pending business among themselves, they don't have to let in the press or the public. The plaintiffs' position is that a meeting of the Senate Republicans with the Governor, a Democrat, to discuss a pending bill, does not qualify for the caucus exemption, because a Republican Senate caucus meeting is, by definition, a meeting of just the Republicans. The State argued that the Governor was there at the invitation and as a guest of the Republicans, not as a member of their caucus.
Justice Wiggins wrote that this situation was "very similar to the case of Warren v. Giambra, 12 Misc.3d 650 (Sup.Ct., Erie Co., 2006), where the court held a meeting of eight Democratic legislators with the Republican County Executive regarding pending budget and funding issues was not exempt from the Open Meetings Law." At the meeting in question in Warren, the participants were attempting to negotiate their way out of an impasse over the 2050 county budget.
After rehashing the policy behind requiring that public business be conducted in open meetings, and remarking that the purpose of the party caucus exemption was to allow for "private, candid exchange of ideas and points of view among members of each political party concerning public business to come before the legislative bodies," Justice Wiggins pointed out that in ruling on a motion to dismiss, he had to treat as true the plaintiffs' allegations and to consider whether, if they could be proved at trial, they would provide the basis for a valid claim that the Open Meetings law was violated. The plaintiffs' allegations, as summarized by Justice Wiggins, are: "Plaintiffs allege that in a closed meeting between all Republican Senators and Governor Cuomo, Governor Cuomo actively engaged to persuade Republican Senators to break with their party's position and vote for the bill."
"Considering Plaintiff's allegations, and without deciding the matter at this time," Wiggins concluded, "the Court feels there is a justiciable issue presented whether there was a violation of the Open Meeting law. There are not sufficient facts before the Court to determine the matter; thus, the case shall proceed on this issue." This preliminary ruling, given the holding in Warren as a "persuasive" precedent, might be justified.
Justice Wiggins dismissed the complaint as to all other issues, and also dismissed "in its entirety against the Attorney General," who had been named as a defendant but clearly had nothing to do, either personally or officially, with the Open Meetings Law issue.
What does this ruling mean? It keeps the case alive for now, giving the opponents something to crow about. But when one looks at the sole authority Justice Wiggins cites, Warren v. Giambra, it seems that even if Justice Wiggins concludes that there was a violation of the Open Meeting Law, it is unlikely that this would lead to invalidation of the Marriage Equality Law.
Warren is a trial court decision, and thus not a binding precedent. An impasse had developed in the Erie County legislature over the 2005 budget, particularly whether to seek permission from the state to raise some taxes to fill an anticipated budget gap, and in the course of trying to resolve the impasse there were some private meetings, including the one mentioned by Justice Wiggins, involving Democratic legislators, who were in the majority in the legislative body, and the County Executive, a Republican. There were also closed-door negotiations conducted in a judge's chambers involving legislators from both parties and the County Executive. Justice John P. Lane issued a declaration that some of these meetings violated the Open Meetings Law, and noted that Public Officers Law Section 107 gives the court discretionary power to "declare any action or part thereof taken in violation of [the Open Meetings Law] void in whole or in part." However, he wrote, the Court of Appeals has ruled that "not every breach of the 'Open Meetings Law' automatically triggers its enforcement sanctions." Citing various appellate precedents, Justice Lane concluded that "a sanction generally is not warranted" in the absence of a "persistent pattern of deliberate violation of the letter and spirit of the Open Meetings Law by a public body." Even though more than one meeting was held during the budget negotiations that Justice Lane concluded violated the Open Meetings Law, he did not issue an injunction striking down the 2005 budget that was subsequently enacted by the legislature, or various other measures enacted partly as a result of the negotiations carried on in those meetings. "In the absence of aggravating factors, the courts of New York do not routinely award injunctive relief and impose sanctions for nonprejudicial violations of the Open Meetings Law," he concluded.
Thus, it appears, a single violation of the Open Meetings Law in the course of an intense week or two of public and private lobbying by proponents and opponents of the Marriage Equality Bill is unlikely to provide the basis for injunctive relief.
So this case will continue. The next step may be an attempt by the State to appeal Justice Wiggins' ruling on the motion to dismiss on the Open Meetings Law issue, and the plaintiffs might try to appeal the dismissal of their claim on the three-days rule.
If the case is still standing after appeals, discovery would come next, and presumably the plaintiffs will seek to depose Governor Cuomo and some of the Republican Senators about what went on in the close-door meeting, so they will have an evidentiary basis to argue that public business was being conducted in violation of the Open Meetings Law. Perhaps there will be a lively battle over whether Governor Cuomo submits to being deposed! This could prove interesting to watch. But, seriously, there is also the possibility that Justice Wiggins, whose sentiments as to the merits are, despite disclaimers, not very well concealed, could award injunctive relief of some sort, the details of which are beyond speculation at this point.