SPECIAL ISSUE: Same-Sex Marriage, Federal and State--Appellate Court Dismisses Suit Challenging NY Marriage Equality Act

The first cause of action in the complaint ' the cause of action dismissed by the Appellate Division on July 6 ' alleged that the MEA was passed in violation of New York's Open Meetings Law (OML), Article 7 of New York's Public Officers Law, codified as N.Y. Pub. Off. Law ” 100-111. In seeking declaratory judgment invalidating MEA, plaintiffs relied upon the State Legislature's declaration in the OML that “[i]t is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of [New York] be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.” NYCF Complaint ' 19 (quoting N.Y. Pub. Off. ' 100).

The plaintiffs particularly objected to private meetings held in the weeks leading up to passage of MEA between New York City officials who supported the legislation, including Mayor Michael Bloomberg, and Republican members of the State Senate. Plaintiffs not only objected to the closed-door meetings in which Mayor Bloomberg addressed Republican senators as violative of the OML, but alleged that the mayor promised in those meetings to financially support the election campaigns of senators who voted for the bill that became the MEA. Also cited in the complaint were private meetings with Republican senators held by Governor Cuomo at the Governor's Mansion.

Appellate Division Dismisses Complaint

In an opinion by Justice Eugene Michael Fahey, the Appellate Division noted that the purpose of the OML is to “prevent public bodies from debating and deciding in private matters that they are required to debate and decide in public ' .” 2012 WL 2626921, at *4 (citations omitted). (The Republican Conference in the State Senate ' representing a majority of the members of that house ' was undoubtedly a “public body” for purposes of the OML. Id.)

But the court also noted that its decision would turn on its interpretation of an exemption built into the OML by the Legislature, contained in N.Y. Pub. Off. Law ' 108(2). 2012 WL 2626921, at *4.

In broad terms, section 108(2) exempts from the OML's open-door strictures the “deliberations of political committees, conferences and caucuses.” N.Y. Pub. Off. Law ' 108(2)(a). Subdivision b. of the same section clarifies the exemption: “[F]or purposes of this section, the deliberations of political committees, conferences and caucuses means a private meeting of members of the senate or assembly of the state of New York, or of the legislative body of a county, city, town or village, who are members or adherents of the same political party, without regard to (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations.” Id. ' 108(2)(b).

The Appellate Division first examined which “political committees, conferences and caucuses” are eligible for the exemption contained in section 108(2), focusing on language that makes the exemption applicable only to private meetings of committees, conferences or caucuses “who are members or adherents of the same political party ' .” Id. The court pointed out that the exemption would not apply to bodies, like the State Senate's Puerto Rican/Latino caucus, that are comprised of members of different political parties. 2012 WL 2626921, at *4. Under that reading of the statute, of course, private meetings of the Republican Conference of the State Senate ' the conference being made up entirely of Republicans ' are exempt from the OML's provisions.

But that was not the end of the court's analysis. The plaintiffs' cause of action would turn on the meaning of language in the statute which makes the exemption applicable to eligible committees, conferences and caucuses “without regard to ' whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations.” N.Y. Pub. Off. Law ' 108(2)(b)(iii) (emphasis added). The plaintiffs' reading of the provision was that “guests” of a conference must also be of the same political party in order for the statutory exemption to apply. Thus, plaintiffs argued, neither Mayor Bloomberg (a registered Independent) nor Governor Cuomo (a Democrat) could qualify as “guests” of the Republican Conference for purposes of the exemption. 2012 WL 2626921, at *5. The Appellate Division disagreed.

Who Is a Guest?

Under a plain reading of the statute ' and the dictionary meaning of the word “guest” as one who is invited to take part in a function organized by another ' the court concluded that the Legislature had placed no restriction on who could be a guest of a committee, conference or caucus for purposes of the exemption from the OML. Id. Noting a lack of controlling authority on the precise question, the court cited as “eminently practical” what it perceived to be the Legislature's broad meaning of “guest” for purposes of the statutory exemption, pointing out that “in the event that we were to adopt plaintiffs' limited definition of 'guests,' it would be impossible for a Democratic member of a Governor's office, such as a budget director, to speak to a majority Republican caucus. Moreover, assuming that the limitations plaintiffs seek to impose on 'guests' under section 108(2)(b) would apply equally to 'staff' under that statute, we question whether all Senators in the majority conference would be entitled to have their staff members attend a caucus. By way of example, if a Republican Senator employs a chief of staff who is a registered Conservative, or if a Democratic Assembly Member employs a chief of staff who is a registered Independent, those chiefs of staff could no longer attend a majority conference.” Id. at *6.

The Appellate Division also found that there was nothing in the legislative history of section 108(2)(b) to support plaintiffs' reading that “guests” must be adherents of the same political party as the conference that invited them to a meeting. Id.

Court Refuses to Invalidate MEA, Same-Sex Marriages

The court also rejected plaintiffs' contention that the Bloomberg and Cuomo meetings with Republican senators violated the OML because senators were lobbied at those meetings. Noting that the holding of discussions ' but not the conduct of business ' is exempt from the OML under section 108(b)(2), the Appellate Division pointed out that while the NYCF complaint alleges that MEA was discussed at the closed-door meetings, it does not allege that the Republican Conference agreed to pass the MEA at those meetings. Id. at *7. Finally, the court concluded that it would not invalidate the MEA or the marriages performed under it even if, arguendo, the OML had been violated. The court cited the discretion afforded it under the OML and pointed to the plaintiffs' failure to show good cause for the declaratory relief they were seeking: “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 ' .” Id. (citations omitted). The Appellate Division therefore ordered that “judgment should be entered in favor of defendants declaring that defendant New York State Senate did not violate the OML in enacting the MEA and that marriages performed thereunder are not invalid.” Id. at *8.

On June 24, 2011, in a dramatic 33-29 vote, the New York State Senate passed the Marriage Equality Act (MEA) legalizing same-sex marriage in the Empire State. Governor Andrew M. Cuomo signed the bill into law the same night, and the first same-sex marriages were performed under the Act on July 24, 2011. The next day, a lawsuit was filed seeking to invalidate the MEA and any marriages performed under it. Among the causes of action alleged in the complaint was that members of the Republican-controlled State Senate were improperly lobbied at closed-door meetings ' four Senate Republican votes, joining the Democratic minority, ensured MEA's passage ' in violation of a statutory Open Meetings Law. Nearly a year later, a five-judge panel in New York's Appellate Division, Fourth Department, unanimously dismissed the sole cause of action in the suit that had survived motion practice in the court below. New Yorkers for Constitutional Freedoms v. New York State Senate, 2012 WL 2626921 (N.Y. App. Div. 4th Dep't July 6, 2012) (NYCF). In a report published in the N ew York Law Journal on July 9, a representative of plaintiffs' counsel indicated that “he expected to seek leave to appeal the ruling” to New York's highest court, the Court of Appeals. Plaintiffs have since moved for leave to appeal. The motion was returnable on Aug. 20, and a decision is expected shortly.

Plaintiffs Challenged Closed-Door Meetings

The NYCF suit did not directly challenge the constitutionality of the MEA's legalization of same-sex marriage. Rather, it attacked the way that the MEA was passed. (The complaint is available on the website of the first-named plaintiff in the lawsuit, New Yorkers for Constitutional Freedoms.) According to the complaint, the lead plaintiff is a political lobbying group founded by “pastors concerned about religious liberties and moral values in New York State.” NYCF Complaint ' 5, available at New Yorkers for Constitutional Freedoms, NYCF Files Suit Against State Senate, www.nycf.info/position-papers/same-sex-marriage/409-nycf-files-suit-against-state-senate.

The first cause of action in the complaint ' the cause of action dismissed by the Appellate Division on July 6 ' alleged that the MEA was passed in violation of New York's Open Meetings Law (OML), Article 7 of New York's Public Officers Law, codified as N.Y. Pub. Off. Law ” 100-111. In seeking declaratory judgment invalidating MEA, plaintiffs relied upon the State Legislature's declaration in the OML that “[i]t is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of [New York] be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.” NYCF Complaint ' 19 (quoting N.Y. Pub. Off. ' 100).

The plaintiffs particularly objected to private meetings held in the weeks leading up to passage of MEA between New York City officials who supported the legislation, including Mayor Michael Bloomberg, and Republican members of the State Senate. Plaintiffs not only objected to the closed-door meetings in which Mayor Bloomberg addressed Republican senators as violative of the OML, but alleged that the mayor promised in those meetings to financially support the election campaigns of senators who voted for the bill that became the MEA. Also cited in the complaint were private meetings with Republican senators held by Governor Cuomo at the Governor's Mansion.

Appellate Division Dismisses Complaint

In an opinion by Justice Eugene Michael Fahey, the Appellate Division noted that the purpose of the OML is to “prevent public bodies from debating and deciding in private matters that they are required to debate and decide in public ' .” 2012 WL 2626921, at *4 (citations omitted). (The Republican Conference in the State Senate ' representing a majority of the members of that house ' was undoubtedly a “public body” for purposes of the OML. Id.)

But the court also noted that its decision would turn on its interpretation of an exemption built into the OML by the Legislature, contained in N.Y. Pub. Off. Law ' 108(2). 2012 WL 2626921, at *4.

In broad terms, section 108(2) exempts from the OML's open-door strictures the “deliberations of political committees, conferences and caucuses.” N.Y. Pub. Off. Law ' 108(2)(a). Subdivision b. of the same section clarifies the exemption: “[F]or purposes of this section, the deliberations of political committees, conferences and caucuses means a private meeting of members of the senate or assembly of the state of New York, or of the legislative body of a county, city, town or village, who are members or adherents of the same political party, without regard to (i) the subject matter under discussion, including discussions of public business, (ii) the majority or minority status of such political committees, conferences and caucuses or (iii) whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations.” Id. ' 108(2)(b).

The Appellate Division first examined which “political committees, conferences and caucuses” are eligible for the exemption contained in section 108(2), focusing on language that makes the exemption applicable only to private meetings of committees, conferences or caucuses “who are members or adherents of the same political party ' .” Id. The court pointed out that the exemption would not apply to bodies, like the State Senate's Puerto Rican/Latino caucus, that are comprised of members of different political parties. 2012 WL 2626921, at *4. Under that reading of the statute, of course, private meetings of the Republican Conference of the State Senate ' the conference being made up entirely of Republicans ' are exempt from the OML's provisions.

But that was not the end of the court's analysis. The plaintiffs' cause of action would turn on the meaning of language in the statute which makes the exemption applicable to eligible committees, conferences and caucuses “without regard to ' whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations.” N.Y. Pub. Off. Law ' 108(2)(b)(iii) (emphasis added). The plaintiffs' reading of the provision was that “guests” of a conference must also be of the same political party in order for the statutory exemption to apply. Thus, plaintiffs argued, neither Mayor Bloomberg (a registered Independent) nor Governor Cuomo (a Democrat) could qualify as “guests” of the Republican Conference for purposes of the exemption. 2012 WL 2626921, at *5. The Appellate Division disagreed.

Who Is a Guest?

Under a plain reading of the statute ' and the dictionary meaning of the word “guest” as one who is invited to take part in a function organized by another ' the court concluded that the Legislature had placed no restriction on who could be a guest of a committee, conference or caucus for purposes of the exemption from the OML. Id. Noting a lack of controlling authority on the precise question, the court cited as “eminently practical” what it perceived to be the Legislature's broad meaning of “guest” for purposes of the statutory exemption, pointing out that “in the event that we were to adopt plaintiffs' limited definition of 'guests,' it would be impossible for a Democratic member of a Governor's office, such as a budget director, to speak to a majority Republican caucus. Moreover, assuming that the limitations plaintiffs seek to impose on 'guests' under section 108(2)(b) would apply equally to 'staff' under that statute, we question whether all Senators in the majority conference would be entitled to have their staff members attend a caucus. By way of example, if a Republican Senator employs a chief of staff who is a registered Conservative, or if a Democratic Assembly Member employs a chief of staff who is a registered Independent, those chiefs of staff could no longer attend a majority conference.” Id. at *6.

The Appellate Division also found that there was nothing in the legislative history of section 108(2)(b) to support plaintiffs' reading that “guests” must be adherents of the same political party as the conference that invited them to a meeting. Id.

Court Refuses to Invalidate MEA, Same-Sex Marriages

The court also rejected plaintiffs' contention that the Bloomberg and Cuomo meetings with Republican senators violated the OML because senators were lobbied at those meetings. Noting that the holding of discussions ' but not the conduct of business ' is exempt from the OML under section 108(b)(2), the Appellate Division pointed out that while the NYCF complaint alleges that MEA was discussed at the closed-door meetings, it does not allege that the Republican Conference agreed to pass the MEA at those meetings. Id. at *7. Finally, the court concluded that it would not invalidate the MEA or the marriages performed under it even if, arguendo, the OML had been violated. The court cited the discretion afforded it under the OML and pointed to the plaintiffs' failure to show good cause for the declaratory relief they were seeking: “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 ' .” Id. (citations omitted). The Appellate Division therefore ordered that “judgment should be entered in favor of defendants declaring that defendant New York State Senate did not violate the OML in enacting the MEA and that marriages performed thereunder are not invalid.” Id. at *8.