Levy V. State Senate
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY ----------------------------------------------------------------------------------------------------------x STEVE LEVY, as COUNTY EXECUTIVE of the COUNTY OF SUFFOLK, Petitioner-Plaintiff, Index No.: - againstVERIFIED PETITION NEW YORK STATE SENATE; SENATOR ERIC ADAMS; SENATOR JOSEPH P. ADDABBO, JR.; SENATOR JAMES S. ALESI; SENATOR DARREL J. AUBERTINE; SENATOR JOHN J. BONACIC; SENATOR NEIL D. BRESLIN; SENATOR JOHN A. DeFRANCISCO; SENATOR RUBEN DIAZ, SR.; SENATOR MARTIN MALAVÉ DILAN; SENATOR THOMAS DUANE; SENATOR PEDRO ESPADA, JR.; SENATOR HUGH T. FARLEY; SENATOR JOHN J. FLANAGAN; SENATOR BRIAN X. FOLEY; SENATOR CHARLES J. FUSCHILLO, JR.; SENATOR MARTIN J. GOLDEN; SENATOR JOSEPH A. GRIFFO; SENATOR KEMP HANNON; SENATOR RUTH HASSELL-THOMPSON; SENATOR SHIRLEY L. HUNTLEY; SENATOR CRAIG M. JOHNSON; SENATOR OWEN H. JOHNSON; SENATOR JEFFERY D. KLEIN; SENATOR LIZ KRUEGER; SENATOR CARL KRUGER; SENATOR ANDREW J. LANZA; SENATOR WILLIAM J. LARKIN, JR.; SENATOR KENNETH P. LaVALLE; SENATOR VINCENT L. LEIBELL; SENATOR THOMAS LIBOUS; SENATOR ELIZABETH LITTLE; SENATOR CARL L. MARCELLINO; SENATOR GEORGE D. MAZIARZ; SENATOR ROY J. McDONALD; SENATOR HIRAM MONSERRATE; SENATOR VELMANETTE MONTGOMERY; SENATOR THOMAS P. MORAHAN; SENATOR MICHAEL F. NOZZOLIO; SENATOR GEORGE ONORATO; SENATOR SUZI OPPENHEIMER; SENATOR FRANK PADAVAN; SENATOR KEVIN S. PARKER; SENATOR BILL PERKINS; SENATOR MICHAEL H. RANZENHOFER; SENATOR JOSEPH E. ROBACH; SENATOR STEPHEN M. SALAND; SENATOR JOHN L. SAMPSON; SENATOR DIANE J. SAVINO; SENATOR ERIC T. SCHNEIDERMAN; SENATOR JOSE M. SERRANO; SENATOR JAMES L. SEWARD; SENATOR DEAN G. SKELOS; SENATOR MALCOLM A. SMITH; SENATOR DANIEL L. SQUADRON; SENATOR WILLIAM T. STACHOWSKI; SENATOR TOBY ANN STAVISKY; SENATOR ANDREA STEWART-COUSINS; SENATOR ANTOINE M. THOMPSON; SENATOR DAVID J. VALESKY; SENATOR DALE M. VOLKER; SENATOR GEORGE H. WINNER, JR.; and SENATOR CATHARINE YOUNG, Respondents-Defendants. FOR A JUDGMENT OF MANDAMUS PURSUANT TO CPLR ARTICLE 78 AND FOR A DECLARATORY JUDGMENT PURSUANT TO CPLR § 3001. ----------------------------------------------------------------------------------------------------------x Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of the COUNTY
1
OF SUFFOLK by his attorney, CHRISTINE MALAFI, Suffolk County Attorney, upon information and belief, complaining of Respondents-Defendants, respectfully alleges as follows: 1.
Petitioner-Plaintiff is the duly elected COUNTY EXECUTIVE of the
COUNTY OF SUFFOLK, a municipal corporation formed under the laws of New York State, and has principal offices at 100 Veterans Memorial Highway, Hauppauge, New York. 2.
Respondent-Defendant NEW YORK STATE SENATE was and still is a
constitutionally created legislative body of the State of New York, and is responsible for, among other things, taking official action on behalf of the citizens of the State to propose, review, consider and enact acts of legislation in accordance with the Constitution and laws of the State of New York. 3.
Each of the named Respondent-Defendant Senators is a duly elected
member of the NEW YORK STATE SENATE and is charged with the duties and responsibilities of the Office of New York State Senator, in accordance with the Constitution and laws of the State of New York. AS AND FOR A FIRST CAUSE OF ACTION 4.
The New York State Constitution, Article III, Section 9, provides that the
Senate shall choose a Temporary President. 5.
On or about January 7, 2009 thirty two (32) senators elected SENATOR
MALCOLM SMITH the Temporary President and Majority Leader of the NEW YORK STATE SENATE. 6.
On or about June 8, 2009 thirty two (32) Senators voted to install
2
SENATOR PEDRO ESPADA as Temporary President and SENATOR DEAN SKELOS as Majority Leader of the NEW YORK STATE SENATE. 7.
The validity of the action of the thirty two (32) Senators described in
paragraph No. 6, above is in dispute within and among the members of the NEW YORK STATE SENATE. 8.
The dispute over the validity of the action of the thirty two (32) Senators
described in paragraph No. 6, above has left the leadership of the NEW YORK STATE SENATE in doubt and this uncertainty has caused the NEW YORK STATE SENATE to cease to function and the individual members to cease fulfilling their duties and responsibilities. 9.
On June 30, 2009 the NEW YORK STATE SENATE passed some one
hundred twenty five (125) bills which David A. Paterson, Governor of the State of New York, refuses to sign because of anticipated or potential objections to the validity of the session. 10.
Among the bills passed by the NEW YORK STATE SENATE on June 30,
2009 were non-controversial bills, including bills renewing taxing authority for local governments. 11.
Among the bills passed by the NEW YORK STATE SENATE on June 30,
2009 were two bills, whose delay directly injures and damages Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of the COUNTY OF SUFFOLK and the taxpayers of the COUNTY OF SUFFOLK, to wit, S 5476, authorizing an increase in the hotel-motel tax and extending the authorization to impose such taxes, and S 5488, authorizing a surcharge on wireless communications service to fund the 911 emergency
3
services. 12.
The failure of the NEW YORK STATE SENATE to properly deliver the
aforesaid bills will cause a loss of revenue to the COUNTY OF SUFFOLK of approximately eight million dollars ($8,000,000) per year. 13.
It is axiomatic that there can not be two (2) elected Temporary Presidents
of the NEW YORK STATE SENATE and the Court must, therefore, determine which of the elections described in paragraphs numbered 5 and 6, above, selected the lawful and proper Temporary President of the NEW YORK STATE SENATE. 14.
Time is of the essence, as Counties and local governments are currently
engaged in the process of crafting budgets and their ability to do so is being severely impaired, to the point where municipalities are being forced to resort to employee layoffs and program cuts as a result of the inaction of the NEW YORK STATE SENATE. 15.
Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of the
COUNTY OF SUFFOLK is entitled to a declaration identifying the lawful and proper Temporary President and Majority Leader of the NEW YORK STATE SENATE in order that the NEW YORK STATE SENATE may resume the work it is duty-bound to perform. AS AND FOR A SECOND CAUSE OF ACTION 16.
Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of the
COUNTY OF SUFFOLK repeats, reiterates and realleges each and every allegation contained in paragraphs numbered 1 through 15 as though fully set forth herein. 17.
It is the duty of the NEW YORK STATE SENATE to, inter alia, present to
the Governor such bills as shall have originated in the Senate and shall have been passed by both houses, in accordance with Rule IV § 3 of the Rules of the NEW YORK STATE
4
SENATE. 18.
On or about May 26, 2009 the NEW YORK STATE SENATE passed Bill
No. S 4024 , which authorizes the COUNTY OF SUFFOLK to impose and collect a tax in the amount of one per centum (1%) on sales of certain goods and services in the COUNTY OF SUFFOLK. 19.
The aforesaid Bill No. S 4024 (A 7335) was duly passed by the Assembly
on June 15, 2009. 20.
The NEW YORK STATE SENATE has yet to present the aforesaid Bill
No. S 4024 to the Governor, as required by the Rules of the NEW YORK STATE SENATE. 21.
The duty of the NEW YORK STATE SENATE to present the aforesaid
Bill No. S 4024 to the Governor is a ministerial duty which does not involve the exercise of any discretion. 22.
The failure of the NEW YORK STATE SENATE to perform the duty
enjoined upon it by law has caused Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of the COUNTY OF SUFFOLK, to be aggrieved. 23.
The failure of the NEW YORK STATE SENATE to perform the duty
enjoined upon it by law will cause Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of the COUNTY OF SUFFOLK to be damaged as a result of being deprived of substantial revenue, of approximately three hundred million dollars ($300,000,000) per year, to the detriment of the taxpayers of the COUNTY OF SUFFOLK. 24.
That by virtue of the foregoing, Petitioner-Plaintiff STEVE LEVY, as
5
COUNTY EXECUTIVE of the COUNTY OF SUFFOLK is entitled to a judgment directing Respondent-Defendant NEW YORK STATE SENATE, to perform the duty enjoined upon it by law, to wit, to present Bill No. S 4024 to the Governor in accordance with the Rules of the NEW YORK STATE SENATE. WHEREFORE, Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of the COUNTY OF SUFFOLK prays for a judgment: 1.
Declaring, pursuant to CPLR § 3001, the rights and other legal relations of
the parties to the justiciable controversy presented, to wit, identifying the lawful and proper Temporary President and Majority Leader of the NEW YORK STATE SENATE as per the votes of January 7, 2009 and June 8, 2009, in order that the NEW YORK STATE SENATE may resume the work it is duty-bound to perform. 2.
Directing, pursuant to CPLR § 7803, Respondent-Defendant NEW YORK
STATE SENATE to perform the duty enjoined upon it by law, to wit, present Bill No. S 4024 to the Governor in accordance with the Rules of the NEW YORK STATE SENATE. 3.
Awarding the costs and disbursements of this action.
Dated: Hauppauge, New York July 6, 2009 Respectfully submitted, CHRISTINE MALAFI Suffolk County Attorney Attorney for Petitioner-Plaintiff Office & P.O. Address 100 Veterans Memorial Highway P.O. Box 6100 Hauppauge, New York 11788-0099 By: _____________________________ CHRISTINE MALAFI County Attorney
6
TO:
NEW YORK STATE SENATE SENATORS, above-named ANGELO APONTE, as Secretary of the NEW YORK STATE SENATE THE CAPITOL Albany, New York 12247
7
1
OF SUFFOLK by his attorney, CHRISTINE MALAFI, Suffolk County Attorney, upon information and belief, complaining of Respondents-Defendants, respectfully alleges as follows: 1.
Petitioner-Plaintiff is the duly elected COUNTY EXECUTIVE of the
COUNTY OF SUFFOLK, a municipal corporation formed under the laws of New York State, and has principal offices at 100 Veterans Memorial Highway, Hauppauge, New York. 2.
Respondent-Defendant NEW YORK STATE SENATE was and still is a
constitutionally created legislative body of the State of New York, and is responsible for, among other things, taking official action on behalf of the citizens of the State to propose, review, consider and enact acts of legislation in accordance with the Constitution and laws of the State of New York. 3.
Each of the named Respondent-Defendant Senators is a duly elected
member of the NEW YORK STATE SENATE and is charged with the duties and responsibilities of the Office of New York State Senator, in accordance with the Constitution and laws of the State of New York. AS AND FOR A FIRST CAUSE OF ACTION 4.
The New York State Constitution, Article III, Section 9, provides that the
Senate shall choose a Temporary President. 5.
On or about January 7, 2009 thirty two (32) senators elected SENATOR
MALCOLM SMITH the Temporary President and Majority Leader of the NEW YORK STATE SENATE. 6.
On or about June 8, 2009 thirty two (32) Senators voted to install
2
SENATOR PEDRO ESPADA as Temporary President and SENATOR DEAN SKELOS as Majority Leader of the NEW YORK STATE SENATE. 7.
The validity of the action of the thirty two (32) Senators described in
paragraph No. 6, above is in dispute within and among the members of the NEW YORK STATE SENATE. 8.
The dispute over the validity of the action of the thirty two (32) Senators
described in paragraph No. 6, above has left the leadership of the NEW YORK STATE SENATE in doubt and this uncertainty has caused the NEW YORK STATE SENATE to cease to function and the individual members to cease fulfilling their duties and responsibilities. 9.
On June 30, 2009 the NEW YORK STATE SENATE passed some one
hundred twenty five (125) bills which David A. Paterson, Governor of the State of New York, refuses to sign because of anticipated or potential objections to the validity of the session. 10.
Among the bills passed by the NEW YORK STATE SENATE on June 30,
2009 were non-controversial bills, including bills renewing taxing authority for local governments. 11.
Among the bills passed by the NEW YORK STATE SENATE on June 30,
2009 were two bills, whose delay directly injures and damages Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of the COUNTY OF SUFFOLK and the taxpayers of the COUNTY OF SUFFOLK, to wit, S 5476, authorizing an increase in the hotel-motel tax and extending the authorization to impose such taxes, and S 5488, authorizing a surcharge on wireless communications service to fund the 911 emergency
3
services. 12.
The failure of the NEW YORK STATE SENATE to properly deliver the
aforesaid bills will cause a loss of revenue to the COUNTY OF SUFFOLK of approximately eight million dollars ($8,000,000) per year. 13.
It is axiomatic that there can not be two (2) elected Temporary Presidents
of the NEW YORK STATE SENATE and the Court must, therefore, determine which of the elections described in paragraphs numbered 5 and 6, above, selected the lawful and proper Temporary President of the NEW YORK STATE SENATE. 14.
Time is of the essence, as Counties and local governments are currently
engaged in the process of crafting budgets and their ability to do so is being severely impaired, to the point where municipalities are being forced to resort to employee layoffs and program cuts as a result of the inaction of the NEW YORK STATE SENATE. 15.
Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of the
COUNTY OF SUFFOLK is entitled to a declaration identifying the lawful and proper Temporary President and Majority Leader of the NEW YORK STATE SENATE in order that the NEW YORK STATE SENATE may resume the work it is duty-bound to perform. AS AND FOR A SECOND CAUSE OF ACTION 16.
Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of the
COUNTY OF SUFFOLK repeats, reiterates and realleges each and every allegation contained in paragraphs numbered 1 through 15 as though fully set forth herein. 17.
It is the duty of the NEW YORK STATE SENATE to, inter alia, present to
the Governor such bills as shall have originated in the Senate and shall have been passed by both houses, in accordance with Rule IV § 3 of the Rules of the NEW YORK STATE
4
SENATE. 18.
On or about May 26, 2009 the NEW YORK STATE SENATE passed Bill
No. S 4024 , which authorizes the COUNTY OF SUFFOLK to impose and collect a tax in the amount of one per centum (1%) on sales of certain goods and services in the COUNTY OF SUFFOLK. 19.
The aforesaid Bill No. S 4024 (A 7335) was duly passed by the Assembly
on June 15, 2009. 20.
The NEW YORK STATE SENATE has yet to present the aforesaid Bill
No. S 4024 to the Governor, as required by the Rules of the NEW YORK STATE SENATE. 21.
The duty of the NEW YORK STATE SENATE to present the aforesaid
Bill No. S 4024 to the Governor is a ministerial duty which does not involve the exercise of any discretion. 22.
The failure of the NEW YORK STATE SENATE to perform the duty
enjoined upon it by law has caused Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of the COUNTY OF SUFFOLK, to be aggrieved. 23.
The failure of the NEW YORK STATE SENATE to perform the duty
enjoined upon it by law will cause Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of the COUNTY OF SUFFOLK to be damaged as a result of being deprived of substantial revenue, of approximately three hundred million dollars ($300,000,000) per year, to the detriment of the taxpayers of the COUNTY OF SUFFOLK. 24.
That by virtue of the foregoing, Petitioner-Plaintiff STEVE LEVY, as
5
COUNTY EXECUTIVE of the COUNTY OF SUFFOLK is entitled to a judgment directing Respondent-Defendant NEW YORK STATE SENATE, to perform the duty enjoined upon it by law, to wit, to present Bill No. S 4024 to the Governor in accordance with the Rules of the NEW YORK STATE SENATE. WHEREFORE, Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of the COUNTY OF SUFFOLK prays for a judgment: 1.
Declaring, pursuant to CPLR § 3001, the rights and other legal relations of
the parties to the justiciable controversy presented, to wit, identifying the lawful and proper Temporary President and Majority Leader of the NEW YORK STATE SENATE as per the votes of January 7, 2009 and June 8, 2009, in order that the NEW YORK STATE SENATE may resume the work it is duty-bound to perform. 2.
Directing, pursuant to CPLR § 7803, Respondent-Defendant NEW YORK
STATE SENATE to perform the duty enjoined upon it by law, to wit, present Bill No. S 4024 to the Governor in accordance with the Rules of the NEW YORK STATE SENATE. 3.
Awarding the costs and disbursements of this action.
Dated: Hauppauge, New York July 6, 2009 Respectfully submitted, CHRISTINE MALAFI Suffolk County Attorney Attorney for Petitioner-Plaintiff Office & P.O. Address 100 Veterans Memorial Highway P.O. Box 6100 Hauppauge, New York 11788-0099 By: _____________________________ CHRISTINE MALAFI County Attorney
6
TO:
NEW YORK STATE SENATE SENATORS, above-named ANGELO APONTE, as Secretary of the NEW YORK STATE SENATE THE CAPITOL Albany, New York 12247
7
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