New Yorkers for Constitutional Freedoms v. N.Y. State Senate

• Decision Date: 06 July 2012
• Citation: 948 N.Y.S.2d 787,2012 N.Y. Slip Op. 05455,98 A.D.3d 285
• Parties: NEW YORKERS FOR CONSTITUTIONAL FREEDOMS, Jason J. McGuire, Duane R. Motley and Nathaniel S. Leiter, Plaintiffs–Respondents, v. NEW YORK STATE SENATE, New York State Department of Health, Defendants–Appellants, and Eric T. Schneiderman, In His Official Capacity as the Attorney General of the State of New York, Defendant.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 285
948 N.Y.S.2d 787
2012 N.Y. Slip Op. 05455

NEW YORKERS FOR CONSTITUTIONAL FREEDOMS, Jason J. McGuire, Duane R. Motley and Nathaniel S. Leiter, Plaintiffs–Respondents,
v.
NEW YORK STATE SENATE, New York State Department of Health, Defendants–Appellants,
and
Eric T. Schneiderman, In His Official Capacity as the Attorney General of the State of New York, Defendant.

Supreme Court, Appellate Division, Fourth Department, New York.

July 6, 2012.

[948 N.Y.S.2d 789]

Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of Counsel), for Defendants–Appellants.

Liberty Counsel, Lynchburg, Virginia (Rena M. Lindevaldsen of Counsel), and Joseph P. Miller, Cuba, for Plaintiffs–Respondents.

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.

Opinion by FAHEY, J.:

[98 A.D.3d 287]This appeal arises from the passage of the Marriage Equality Act ( [MEA] L. 2011, ch. 95, § 3), which permits same-sex couples to marry in this state ( seeDomestic Relations Law § 10–a). Plaintiffs unsuccessfully opposed the MEA, and thereafter commenced this action to challenge the process by which it was enacted. Defendants, New York State Senate, New York State Department of Health and Eric T. Schneiderman, Attorney General, State of New York, made a pre-answer motion to dismiss the verified complaint pursuant to CPLR 3211(a)(1) and (7), and Supreme Court granted the motion in its entirety with respect to defendant Attorney General. The court, however, granted the motion only in part with respect to the two remaining defendants (collectively, defendants). The verified complaint's first cause of action, alleging a violation of the Open Meetings Law ( [OML] Public Officers Law art. 7) requiring nullification of the MEA, is the sole cause of action to have survived motion practice. In that cause of action, plaintiffs seek a declaration that the New York State Senate violated the OML in enacting the MEA and voiding any marriages performed pursuant to that act.

Defendants appeal, and in doing so bring before us none of the policy considerations relative to the MEA that lurk beneath the verified complaint in this action. Rather, our primary task on this appeal is to interpret the exemption to the OML embodied in Public Officers Law § 108(2) (hereafter, exemption). We cannot agree with the court that the part of the exemption providing that political caucuses may invite guests to participate in

[948 N.Y.S.2d 790]

their deliberations without violating the OML should be read to limit eligible guests to members of the same political party of the political caucus that issued the invitation. We thus conclude that the judgment insofar as appealed from should be reversed and that judgment should be entered declaring that the New York State Senate did not violate the OML in enacting the MEA and that marriages performed thereunder are not invalid.

[98 A.D.3d 288]We note at the outset that a motion to dismiss the complaint is not the proper procedural vehicle for the relief sought by defendants in this declaratory judgment action ( see generally Morgan v. Town of W. Bloomfield, 295 A.D.2d 902, 904, 744 N.Y.S.2d 274). Inasmuch as “this is a declaratory judgment action, we treat [defendants'] motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7) as a motion for a declaration in [their] favor” ( Fekishazy v. Thomson, 204 A.D.2d 959, 962 n. 2, 612 N.Y.S.2d 276;see generallyCPLR 2001).

I

As noted, this appeal arises from the passage of the MEA and the legalization of gender-neutral marriage in New York State. Legislation proposing to legalize such marriage failed in 2009, but in 2011 four Republican State Senators joined Democratic State Senators in voting for the MEA, which was signed into law by Governor Andrew Cuomo on June 24, 2011. At the time the MEA was enacted, 32 of the 62 members of the State Senate were Republicans.

Our review begins with the verified complaint, which sets forth what is characterized as the series of events that precipitated the passage of the MEA. In mid-May 2011, New York City Mayor Michael Bloomberg, a registered Independent, accompanied by New York City Council Speaker Christine Quinn, a registered Democrat, met individually with Republican State Senators to lobby on behalf of Assembly Bill A8354–2011, which provided the foundation for what ultimately became the MEA. According to the verified complaint, Mayor Bloomberg's lobbying efforts with respect to the assembly bill were not limited to May 2011. Indeed, plaintiffs allege that Mayor Bloomberg met with the entire Republican Conference of the Senate, i.e., 32 of the 62 Senators, in a closed meeting at the New York Capitol Building on June 16, 2011 (hereafter, Bloomberg meeting). At that meeting, Mayor Bloomberg spoke to the Republican Conference and pledged financial support for the campaigns of Republican Senators who voted in favor of the MEA. In contrast to the access granted Mayor Bloomberg, neither plaintiff Duane R. Motley, the Senior Lobbyist with plaintiff New Yorkers for Constitutional Freedoms, nor plaintiff Nathaniel S. Leiter, the Executive Director of Torah Jews for Decency, was permitted to address the Republican Conference that day.

Similarly to Mayor Bloomberg, Governor Cuomo, a registered Democrat, lobbied on behalf of the MEA. According to the verified[98 A.D.3d 289]complaint, Governor Cuomo met privately with Republican Senators at the Governor's mansion to advocate for the MEA (hereafter, Cuomo meeting), and that meeting was not open to the public. The verified complaint alleges, upon information and belief, that a quorum of the State Senate was present for the Cuomo meeting, but it is unclear whether the term “quorum” refers to all of the Republican Senators, as opposed to a mix of Republican and Democratic Senators. For purposes of this appeal, however, we assume that plaintiffs have alleged that all of the Republican Senators were present for the Cuomo meeting.

[948 N.Y.S.2d 791]

Plaintiffs do not specify a date on which the Cuomo meeting occurred, but one of the exhibits to the verified complaint suggests that it may have been held on June 20, 2011. In the event that the Cuomo meeting was indeed held on June 20, 2011, it occurred subsequent to the Assembly's passage of the MEA on June 15, 2011, which was facilitated by a message of necessity from Governor Cuomo dispensing with the constitutionally-mandated waiting period of three days for the passage of bills ( seeN.Y. Const., art. III, § 14).

Once passed by the Assembly, the MEA was delivered to the Senate, and during the week of June 20, 2011 there was what Motley describes as an “unprecedented” denial of public access to the Republican Senators. Plaintiffs allege that, on Tuesday, June 21, 2011, lobbyists and activists were locked out of the Senate lobby and that, on June 22 and 23, 2011, the Senate lobby was only partially reopened to legislative staff and lobbyists. On Friday, June 24, 2011, the lockout resumed, thereby preventing the public from accessing the Senate lobby and the Republican side of the Senate chamber. Moreover, the Republican Senators allegedly turned off their cell phones on June 24, 2011 and met for five hours on that date without providing for access to staff or the public.

The MEA was amended on June 24, 2011 (hereafter, Bill) to include limited protections for certain religious entities ( see L. 2011, ch. 95, § 3), and Governor Cuomo issued messages of necessity to the Assembly and the Senate with respect to the Bill on that date, again dispensing with one of the constitutional requirements for enacting a bill into law. The Bill, now identified as A8520–2011, passed the Assembly, and thereafter was passed by the Senate in a regular session by a vote of 33 to 29. Governor Cuomo signed the Bill into law on June 24, 2011 at 11:15 p.m.

[98 A.D.3d 290]II

Plaintiffs commenced this action approximately one month after the MEA was enacted. In addition to providing the basis for the foregoing factual summary, the verified complaint asserted three causes of action against defendants and defendant Attorney General. Our concern rests with the first cause of action, which alleges the violation of the OML arising from the purported conduct of business of a public body in a closed session and seeks a declaration nullifying the MEA pursuant to Public Officers Law § 107 and voiding any marriages that were performed pursuant to that act. The second cause of action challenges Governor Cuomo's issuance of the subject messages of necessity as ultra vires, while the third cause of action alleges that defendants deprived plaintiffs of their constitutional right to freedom of speech.

As noted, in lieu of an answer defendants moved to dismiss the verified complaint pursuant to CPLR 3211(a)(1) and (7). The court granted the motion in its entirety with respect to defendant Attorney General and, with respect to defendants, the court dismissed only the second and third causes of action, reasoning that there is a justiciable issue whether the OML was violated, as alleged in the first cause of action.

III

Before turning to the primary issue on appeal, we briefly consider two preliminary points of far less significance. First, “although defendant[s] purport[ ] to appeal ‘from each and every part’ of the [judgment], [they are] not aggrieved by those parts ... granting [their] motion in part and thus may not appeal therefrom” ( K.J.D.E. Corp. v. Hartford Fire Ins. Co., 89 A.D.3d 1531, 1532, 932 N.Y.S.2d 778;

[948 N.Y.S.2d 792]

see Viscosi v. Preferred Mut. Ins. Co., 87 A.D.3d 1307, 1307, 930 N.Y.S.2d 165,lv. denied18 N.Y.3d 802, 2011 WL 6223144). Put differently, defendants may appeal from the judgment only to the extent that it denied their motion ( seeCPLR 5511).

Second, defendants contend in their main brief that plaintiffs may not prosecute this case without running afoul of the Speech or Debate Clause of the State Constitution ( seeN.Y. Const.,...