Parker v. Merlino
| Decision Date | 13 June 1980 |
| Docket Number | Civ. A. No. 80-141. |
| Parties | Barry T. PARKER, James S. Cafiero, Donald Di Francesco, John H. Dorsey, Wayne Dumont, Jr., John H. Ewing, Walter E. Foran, S. Thomas Gagliano, Garrett W. Hagedorn, Brian T. Kennedy, Lee B. Laskin, James J. Vreeland, Jr., James H. Wallwork, Members of the Senate of the State of New Jersey and Individually; and Ralph Fucetola, Clarence A. Haverly, Richard Mahon, John Rice and Barbara Tauriello, Individually, Plaintiffs, v. Joseph P. MERLINO, Eugene J. Bedell, John P. Caufield, Frank J. Dodd, Bernard J. Dwyer, Angelo J. Errichetti, David J. Friedland, Matthew Feldman, Frank X. Graves, John T. Gregorio, William J. Hamilton, Francis X. Herbert, Joseph Hirkala, Wynona A. Lipman, Joseph A. Maressa, William Vincent Musto, Carmen A. Orechio, Steven P. Perskie, Frank E. Rodgers, Anthony Scardino, Jr., Walter N. Sheil, John M. Skevin, Charles B. Yates and Raymond J. Zane, Members of the Senate of the State of New Jersey; and the Senate of the State of New Jersey and the State of New Jersey, Defendants. |
| Court | U.S. District Court — District of New Jersey |
John P. Sheridan, Jr., Princeton, N. J., for plaintiffs.
William Harla, Deputy Atty. Gen., State of N. J., Trenton, N. J., for defendants, The Senate of the State of New Jersey and The State of New Jersey.
Thirteen of the plaintiffs are members of the Senate of the State of New Jersey. Five of the plaintiffs are New Jersey residents who reside in a legislative district represented by one of the plaintiff Senators. The twenty-four defendants are or were members of the New Jersey State Senate, and one of them, the Honorable Joseph P. Merlino, also serves as President of the New Jersey Senate.
Plaintiffs assert that P.L.1979, c. 280, a tax bill signed by Governor Byrne on January 8, 1980, was unlawfully enacted by the State Senate and that their First and Fourteenth Amendment constitutional rights were violated. The violations were occasioned by rulings of the Senate President which were sustained by the Senate majority and which prevented them from debating the bill prior to the Senate vote.
Plaintiffs filed their complaint in this Court on January 15, 1980, seeking vindication of rights protected by 42 U.S.C. § 1983 and alleging jurisdiction under 28 U.S.C. §§ 1331 and 1343(3). Plaintiffs seek the following relief:
1. The actions of Senator Merlino and the other defendants in cutting off debate on A-3677 and in prohibiting debate on A-3678 be declared unconstitutional pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, et seq.;
2. The Rules of the Senate of the State of New Jersey be declared unconstitutional pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, et seq. to the extent that they allow the Senate to prohibit any Senator of the right to speak for or against legislation, before the Senate, for a reasonable period of time prior to it being voted upon by the Senate;
3. Senator Merlino and the other defendant Senators be enjoined from acting in a manner which will deprive any plaintiff Senator of the right to speak for or against any legislation before the Senate for a reasonable period of time prior to it being voted upon by the Senate 4. P.L.1979, c. 280 be declared unconstitutional due to the unconstitutional manner in which it was adopted, pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, et seq.;
5. Costs of suit, counsel fees and such other relief as the Court may deem just and equitable.
At a conference with the Court shortly after the complaint was filed, it appeared that it would be possible to stipulate all of the pertinent facts and that the case could be resolved on cross-motions for summary judgment. Such a stipulation was filed and plaintiffs and defendants filed motions for summary judgment. In addition, defendants filed an affidavit of the Honorable Joseph P. Merlino to the effect that twelve of the thirteen plaintiff Senators were present on January 9, 1979 when the Senate adopted by a voice vote its Rules for the Session commencing on that date. The affidavit remains undisputed.
Inasmuch as the pertinent facts have all been stipulated, there is no genuine issue as to any material fact, and the matter is ripe for disposition by way of summary judgment pursuant to Fed.R.Civ.P. 56.
On December 28, 1979 the Governor of New Jersey announced a $340,000,000.00 tax plan to make up a budget shortfall predicated by the Administration for the New Jersey budget commencing July 1, 1980. The plan contemplated several new taxes, including those set forth in Assembly Bills 3677 and 3678.
On Saturday, January 5, 1980, A-3677 was given its third reading and passed the Assembly. A-3677 was given a second reading no reference in the Senate late Saturday night, January 5, 1980.
On Saturday, January 5, 1980, A-3678 was given its third reading and passed the Assembly. A-3678 was given a second reading no reference in the Senate late Saturday night, January 5, 1980.
On Saturday, January 5, 1980, the Senate President's office issued a Board List, circulated to all members of the Senate, of bills to be voted on Monday, January 7, 1980 for a Session originally scheduled to begin at 2:00 p. m. A-3677 and A-3678 were on that Board List.
On Monday, January 7, 1980 the Senate President called the Senate Session to order at approximately 4:00 p. m. After considering 29 bills, the Senate was placed under "call" at approximately 9:00 p. m., with only A-3677 and A-3678 remaining to be voted on. The Session was recessed upon motion adopted by voice vote over the objections of certain plaintiff Senators. The Session was called to order by the Senate President at approximately 11:40 p. m., at which time he advised that A-3677 and A-3678 would be taken up at 10:00 a. m. the following morning, January 8, 1980.
The Senate Democrats held a party caucus at 10:00 a. m. The plaintiff Senators who are Senate Republicans were present and ready to proceed with the Senate Session at 10:00 a. m. The Senate President called the Session to order at approximately 11:27 a. m. (33 minutes before the constitutionally mandated end of the 1979 Senate Session). Senator Hagedorn then rose and asked the Senate President what time it was, giving rise to the inference that if the Senate Session were extended by the time-honored practice of setting back the clock, action taken after the actual hour of noon would be attacked on state constitutional grounds. The Senate President stated that the Senate clock was accurate.
After the quorum call, opening prayer and pledge of allegiance, Senator Dwyer was recognized by Senator Merlino. At that point Senator Hagedorn rose on point of personal privilege to speak concerning the unreasonable manner in which Governor Byrne's tax package, including A-3677 and A-3678, was handled by the Governor and the Legislature. Senator Merlino ruled Senator Hagedorn out of order and would not permit him to speak. Senator Hagedorn appealed this ruling, and the chair was sustained by a vote of 13-23.
At approximately 11:32 a. m., Senator Dwyer, the Democratic Assistant Majority Leader, rose to move and speak in favor of A-3677, noting that the bill would raise $90 million dollars per year by increasing the corporate tax rate from 7½% to 9% per year. He stated that this bill was part of the original tax package which was passed in 1976, and was intended to offset the loss of various business taxes which had been repealed as part of that tax package. He said that if the Senate did not adopt A-3677, the State would face a serious budget shortfall. He then moved the bill.
Senator Hagedorn spoke next in opposition to the bill. He explained that he was being deluged by telegrams and letters in opposition to the Governor's $340,000,000 tax program. Senator Hagedorn spoke for approximately five minutes and was then followed again by Senator Dwyer, who responded to Minority Leader Hagedorn.
Senator Foran next spoke and posed a question to the sponsor through the Senate President. He asked about the funds to be generated in 1979, and Senator Dwyer responded that an additional $45,000,000 (in addition to the $90,000,000) would be raised because of the overlap in the remaining six months of the current fiscal year.
Senator John Russo next rose. He indicated that the budget increases under the Byrne Administration were not as large as under the previous Cahill Administration, and that the increase in spending referred to by Senator Hagedorn was due to the income tax which represented an assumption of local costs previously paid from local property taxes.
Senator Kennedy next rose to speak and complained that as a member of the Revenue, Finance and Appropriations Committee he was not given an opportunity to review the validity of the request for a tax increase because the Committee had not met on the issue. He said that he had to rely on information provided by newspaper reports. He questioned whether there was a budget shortfall, pointing out, among other things, that passage of this tax package was premature as it was not clear that federal revenue sharing funds would not be provided, and that it was possible the State would have the use of commuter tax revenues presently being held in reserve.
At approximately 11:47 a. m., Senator Perskie was asked by Senator Merlino, "Why do you rise?" Senator Perskie replied, "I rise to move the question." His motion was seconded by Senator Dwyer.
Senator Hagedorn objected to the motion. Senator Merlino ruled the motion in order and non-debatable, citing Rule 93(d) of the Senate Rules. Rule 63 of the Senate Rules (limiting the number and length of speeches by Senators on a bill) was not discussed. Senator Hagedorn appealed the ruling to the full Senate.
Senator Parker rose on a point of personal privilege to protest the denial of...
To continue reading
Request your trial
-
Heimbach v. Chu, 1193
...is not within the Act because its primary challenge is to the legislative procedure rather than the resultant tax. See Parker v. Merlino, 493 F.Supp. 381, 386 (D.N.J.1980), aff'd, 646 F.2d 848, 852-53 n. 11 (3d Cir.1981). This argument is not persuasive. The Tax Injunction Act, with "its ro......
-
Parker v. Merlino
...Senate was cut off by the defendants. The district court granted defendants' motion for summary judgment and dismissed the action. 493 F.Supp. 381 (D.N.J.1980). We The facts relevant to this controversy are the subject of a stipulation between the parties and hence are undisputed. Thirteen ......
-
State v. Gregorio
...the context of establishing standards to provide for the orderly and efficient conduct of legislative proceedings. See Parker v. Merlino, 493 F.Supp. 381, 389 (D.N.J.1980), aff'd 646 F.2d 848, 854 (3 Cir.1981); Application of Lamb, 67 N.J.Super. 39, 57, 169 A.2d 822 (App.Div.1961), aff'd o.......