Heimbach v. State

• Decision Date: 18 October 1982
• Citation: 454 N.Y.S.2d 993,89 A.D.2d 138
• Parties: Louis HEIMBACH, individually, and as County Executive of Orange County, etc., et al., Respondents-Appellants, v. The STATE of New York et al., Appellants-Respondents. Warren M. Anderson, as Temporary President and Majority Leader of the New York State Senate, Intervenor-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 993

454 N.Y.S.2d 993

89 A.D.2d 138

Louis HEIMBACH, individually, and as County Executive of

Orange County, etc., et al., Respondents-Appellants, v. The STATE of New York et al., Appellants-Respondents.

Warren M. Anderson, as Temporary President and Majority

Leader of the New York State Senate,

Intervenor-Appellant-Respondent.

Supreme Court, Appellate Division,

Second Department.

Oct. 18, 1982.

Robert Abrams, Atty. Gen., New York City (Richard G. Liskov, Daniel Kaplan, Dennis H. Allee, Peter H. Schiff and

George D. Zuckerman, Asst. Attys. Gen., New York City, of counsel), for appellants-respondents.

James G. Sweeney, County Atty., of Orange County, Goshen, for respondents-appellants.

John F. Haggerty, Albany (William Y. Crowell, III, Albany, of counsel), for intervenor-appellant-respondent.

Before TITONE, J.P., and GIBBONS, WEINSTEIN, GULOTTA and THOMPSON, JJ.

PER CURIAM.

Chapter 485 of the Laws of 1981 ¹ (Senate Bill 1905; Assembly Bill 9059) increases by one-quarter of one percent the sales and compensating use tax of the State within the Metropolitan Commuter Transportation District (MCTD), a 12-county area served by the Metropolitan Transportation Authority (MTA). Orange and Suffolk Counties are included in the MCTD (Public Authorities Law, § 1262).

As recorded in the Journal of the Senate, Senate Bill 1905 was passed by that body with the minimum number ² of affirmative votes required by the State Constitution (N.Y. Const., art. III, § 14). The voting procedure employed is known as the "fast" roll call, and one of the affirmative votes recorded is that of Senator Howard Nolan. It is not disputed that when the vote was taken, Senator Nolan was a patient in the hospital being prepared for elective surgery. The bill was certified as passed on July 8, 1981 by the Speaker of the Assembly and the Acting President of the Senate. It was approved by the Governor on July 11, 1981 and became effective on September 1, 1981.

In this action by the county executives of Orange and Suffolk Counties against the State of New York and James H. Tully, Jr., as the Commissioner of the New York State Tax Commission, the third cause of action seeks a judgment declaring that chapter 485 of the Laws of 1981 is not a duly enacted law of the State of New York. The plaintiffs also seek a declaration that the tax scheme created by chapter 485, in its operation and effect, "violatethe Equal Protection Clause of the Fourteenth Amendment of the United States Constitution" with respect to both Orange County (first cause of action) and Suffolk County (second cause of action).

Plaintiffs moved for summary judgment on the third cause of action and defendants cross-moved for summary judgment dismissing the complaint in its entirety, inter alia, for failure to state a cause of action. Special Term held that on the facts in this case, the assent of Senator Nolan on a "fast" roll call contravened the mandatory proscription of the State Constitution with respect to the passage of a bill, granted the plaintiffs' motion and declared that the said chapter of the Laws of 1981 had not become a law. The defendants' cross motion was denied as moot, and Special Term did not reach the other constitutional issues sought to be raised. Defendants now appeal from the judgment at Special Term and plaintiffs appeal from an order which denied their application for class action certification. This court has granted the application of Warren M. Anderson, as Temporary President and Majority Leader of the Senate, for leave to intervene as a defendant-appellant.

The judgment should be reversed. On the facts as set forth in this record, chapter 485 of the Laws of 1981 was validly enacted into law. We also reject the other challenges raised by the plaintiffs to the validity of this chapter. In light of this determination, plaintiffs' appeal from the order denying class certification is academic.

Initially, we observe that while "in general the courts will not interfere with the internal procedural aspects of the legislative process, judicial review may be undertaken to determine whether the Legislature has complied with constitutional prescriptions as to legislative procedures (Norwick v. Rockefeller, 33 N.Y.2d 537, 347 N.Y.S.2d 435, 301 N.E.2d 422; Matter of Schneider v. Rockefeller, 31 N.Y.2d 420, 340 N.Y.S.2d 889, 293 N.E.2d 67; Finger Lakes Racing Assn. v. New York State Off-Track Pari-Mutuel Betting Comm., 30 N.Y.2d 207, 219-220, 331 N.Y.S.2d 625, 282 N.E.2d 592; People v. Devlin, 33 N.Y. 269; Franklin Nat. Bank of Long Is. v. Clark, 26 Misc.2d 724, 212 N.Y.S.2d 942)." (Matter of Board of Educ. v. City of New York, 41 N.Y.2d 535, 538, 394 N.Y.S.2d 148, 362 N.E.2d 948.)

Howard Nolan, who has been a member of the State Senate since January 1, 1975, was scheduled to undergo elective surgery on July 9, 1981. On the morning of July 8, 1981, he entered the Senate Chamber and had himself designated as present by the Clerk of the Senate. Later in the day, he left the Senate, without informing the Clerk, first going home and then to the hospital. At some time during that day, Assembly Bill 9059, which provides for a quarter of one percent increase in the sales and compensating use tax in the MCTD, was passed by the Assembly and forwarded to the Senate as part of a package of tax bills designed to improve transportation in the district. During the early morning hours of July 9, while Senator Nolan was in the hospital, a vote was taken on Assembly Bill 9059 (Senate Bill 1905) by means of the "fast" roll call. According to the entry in the Senate Journal, the Senate voted 31 to 26 in favor of the bill, with three Senators "excused". The vote of Senator Nolan is included among the 31 "Aye" votes, which is the minimum number of votes required for passage.

Our State Constitution requires that no bill "shall * * * be passed or become a law, except by the assent of a majority of the members elected to each branch of the legislature" (N.Y. Const., art. III, § 14), but the Constitution has prescribed no method of determining the assent of a majority (cf. United States v. Ballin, 144 U.S. 1, 6, 12 S.Ct. 507, 509, 36 L.Ed. 321). Section 9 of article III of the Constitution vests in each house of the Legislature the power to determine the rules of its own proceedings. In the exercise of that power, the Senate has adopted Rules VIII ( § 6) and IX ( § 1) which provide:

Senate Rule VIII, Passage of bills:

"6. Final Passage. The question on the final passage of every bill shall be taken immediately after the third reading and without debate. On the final passage of every bill, a roll call shall be taken by the Secretary calling the names of five Senators, two of whom shall be the Temporary President and the Minority Leader, provided however, that each Senator's name shall be called if requested by five Senators. Each roll call shall be entered on the journal. Such roll calls shall be available for public inspection upon request in the office of the Journal Clerk. When a bill does not receive the number of votes required by the Constitution to pass it, it shall be declared lost, except in cases provided for by subdivision d of section two of Rule 9 hereof."

Senate Rule IX, Senators:

"Section 1. Attendance and Vote.

"a. Every Senator shall be present within the Senate Chamber during the sessions of the Senate, unless duly excused or necessarily prevented, and shall vote on each question stated from the Chair unless excused by the Senate, or unless he has a direct personal or pecuniary interest in the event of such question. If any Senator refuses to vote, unless he be excused by the Senate, or unless he be interested, such refusal shall be deemed a contempt."

The Senate voting procedures are described by Senate Minority Leader Manfred Ohrenstein as follows:

"4. To vote for the passage of a bill a senator must be present on the day the particular vote is taken. Presence is established under the senate rules and customs by a senator's physical entry into the chamber at some point during a session day. However, * * * a senator's presence in fact as opposed to his above described designated presence is not necessary for his vote to be cast, in most cases.

"5. Under the rules of the senate, voting on the final passage of bills may take place under one of two methods--a fast or slow roll call (Rule VIII, § 6). On a fast roll call, a vote is taken by calling the names of five senators, including the Temporary President, the Minority Leader and three others usually the first and last two senators on the alphabetically arranged senate roll call list. What is particularly important to note under the fast roll call method of voting is that under a long established senate custom, a senator who has had his presence designated by the clerk of the senate, as described in '4' above, need not be in the chamber to have his or her vote counted in the affirmative. In other words, a senator who has had himself or herself marked present will be deemed to be voted in the affirmative on any particular vote even if in fact he or she is in his or her office or elsewhere at the time the vote occurs. To vote in the negative, however, a senator must be in the chamber and indicate a negative vote by a show of hand.

"6. This practice is not followed in a slow roll call. Here, after five senators have stood to request this voting process, each of the sixty senator's names are called, and only those members answering 'aye' or 'nay' to their names are recorded as having voted. Those members not responding when their names are called are recorded as having not voted on the measure despite the fact that they may have already been designated present for that day's senate session (See Rule 8, Sec. VI) * * *

"11. Under the rules of the senate a senator who has not had himself designated as present (See paragraph 4 above) is recorded as absent on every roll call vote unless such absence has been...