Skelos V. Paterson -- Memorandum Of Law

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND DEPARTMENT DEAN G. SKELOS and PEDRO ESPADA, JR., as duly elected members of the New York State Senate, Plaintiffs-Respondents, DAVID A. PATERSON, as Governor of the State of New York, RICHARD RAVITCH, as Lieutenant Governor of the State of New York, and LORRAINE CORTES-VAZQUEZ, as Secretary of State of the State of New York, Defendants-Appellants.

Nassau Co. Sup. Ct. Index No.: 13426-2009 Hon. William R. Lamarca

DEFENDANTS-APPELLANTS' MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR INTERIM STAY AND EXPEDITED APPEAL

QUINN, EMANUEL, URQUHART, OLIVER & HEDGES, LLP KATHLEEN M. SULLIVAN FAITH E. GAY ROBERT JUMAN 51 Madison Avenue 22d Floor New York, NY 10022 (212) 849-7000

Counsel for Defendant-Appellants Date: July 22, 2009

PRELIMINARY STATEMENT Late yesterday, the trial court granted Respondents a preliminary injunction which stated that Lieutenant Governor Ravitch "is preliminarily enjoined from exercising any of the powers of the office of Lieutenant-Governor of the State of New York." (Order at 18.). CPLR 6311 states that a "preliminary injunction to restrain a public officer. . . of the state from performing a statutory duty may be granted only by the supreme court at a term in the department in which the officer . . . is located or in which the duty is required to be performed." By this order to show cause, appellants seek an emergency stay of the above referenced preliminary injunction, which was granted without authority contrary to the plain text of CPLR 6311, and will cause irreparable harm to the Governor and the State of New York. STATEMENT OF FACTS Appellants respectfully refer the Court to the facts set forth in the Affirmation of Faith E. Gay dated July 22, 2009 (Gay Affirmation), including their memoranda of law in support of their moving papers in opposition to the motion for preliminary injunction and in support of their motion to dismiss Respondents' complaint, which are attached as Exhibits D and E to the Gay Affirmation. ARGUMENT I.

THIS COURT SHOULD STAY THE PRELIMINARY INJUNCTION ORDERED BY THE TRIAL COURT The court below granted an injunction that CPLR 6311 expressly forbids. The injunction

restrains the second highest officer in the state from performing his statutory duties. Under CPLR 5518, the Appellate Division has the power to grant, modify, limit, and vacate either a preliminary injunction or a temporary restraining order while the ease is on appeal (i.e., after a notice of appeal has been filed•and served). In effect, it gives the appellate division during the

appeal stage the same powers that the supreme court has during the action's pretrial and trial stage. See, e.g., Humane Soc. of U.S. v. County of Monroe, 192 A.D.2d 1139 (4th Dep't 1993) (vacating preliminary injunction pursuant to CPLR 5518 because plaintiff failed to show likelihood of success on the merits); Broadvvall America, Inc. v. Bram Will-El LLC, 821 N.Y.S.2d 190, 191 (1st Dep't 2006) (interim relief granted under CPLR 5518 pending application for stay pending appeal). Moreover, under CPLR 5519(a)(1), a stay of all proceedings to enforce a judgment is automatic when the appellant is an officer of the state, and under CPLR 5519(c), the court to which an appeal is taken may stay all proceedings to enforce the order appealed from. An application to the Appellate Division for relief pending resolution of an appeal under CPLR 5518 will be reviewed de novo, using the same standards as applied by the Supreme Court in respect of the original order. See Romano v. Sullivan County Harness Racing Assn, Inc., 106 A.D.2d 819 (3d Dep't 1984); see also Humane Soc. of US. v. County of Monroe, 192 A.D.2d 1139 (4th Dep't 1993) (vacating preliminary injunction pursuant to CPLR 5518 because plaintiff failed to show likelihood of success on the merits). On an application for an order pending appeal in respect of a preliminary injunction, this Court asks whether there is a reasonable probability of success on appeal and whether plaintiff has demonstrated irreparable injury. Romano, 106 A.D.2d at 820. Courts will order a stay of a trial court's order under 5519(c) pending resolution of an appeal to preserve the status quo or where to do so would be in the public interest". Town of Orangetown v. Magee, 218 A.D.2d 733 (2d Dep't 1995) (ordering a stay of enforcement of trial court and appellate court orders pursuant to CPLR 5519(c) pending determination of the appeal to the COurt of Appeals); Russell v. New York City Housing Authority, 608 N.Y.S2d 592 (N.Y.

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Sup. Ct. 1992) (granting stay of order pursuant to CPLR 5519(c) pending appeal as "in the public interest"). A.

There Is A Reasonable Probability Of Success On Appeal Because, Inter Alia, The Trial Court Was Without Power To issue The Preliminary Injunction

The trial court erred in granting the Respondents' request for preliminary relief because such relief could not be issued out of Nassau County.' Preliminary injunctions are governed by article 63 of the CPLR, and CPLR 6311 requires that a request for an injunction against a public official be made in the Judicial Department in which the restraint is to be made applicable. More than a venue provision, CPLR 6311 literally limits the power of courts to issue preliminary injunctions: A preliminary injunction to restrain a public officer, board or municipal corporation of the state from performing a statutory duty may be granted only by the supreme court at a term in the department in which the officer or board is located or in which the duty is required to be performed. CPLR 6311(1). The preliminary injunction states that Lieutenant Governor Ravitch "is preliminarily enjoined from exercising any of the powers of the office of Lieutenant-Governor of the State of New York." (Order at 18). It therefore directly purports to stop a state officer from performing his statutory duties. It is hard to imagine an injunction that is closer to the kind of injunction contemplated by CPLR 6311(1). In Bull v. Stichman, the Court held that the plaintiff's application for a preliminary injunction restraining defendants, who were state officials, from making certain disbursements of

1 Appellants submit that there are numerous additional grounds for reversal of the Trial Court's Order, many of which are discussed in the memoranda of law in support of their moving papers in opposition to the motion for preliminary injunction and in support of their motion to dismiss Respondents complaint, which are attached as Exhibits D and E to the Gay Affirmation. Appellants will address those arguments in more detail at the appropriate time or as requested by the Court, and this submission is without waiver of any additional appellate arguments.

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state funds pending the final determination of plaintiffs action could not be issued in Erie County (where the action was commenced), because any such application was required to be made in the Third Judicial Department, where the officials were located and where the relevant duty was performed. 72 N.Y.S.2d 202, 206 (Sup. Ct. 1947), aff'd 273 A.D. 311, affd 298 N.Y. 516 (N.Y. 1948) (referring to section 879 of the CPLR, predecessor to CPLR 6311(1)) (cited with approval in New York Central Railway Co. v. Lefkowitz, 12 N.Y.2d 305 (N.Y. 1963). The Court stated: In this case, the defendants, public officers and public board, are located at the seat of government in the City of Albany, New York, which is in the Third Judicial Department, and according an order for a temporary injunction is properly made at a Special Term in the Third Judicial District, which is in the Third Judicial Department. Indeed, it cannot be made elsewhere.

Bull, 72 N.Y.S.2d at 206 (emphasis added). So here. The trial court, which was located in the Second Judicial Department, erred in granting Respondents' request for a preliminary injunction. A preliminary injunction cannot be granted within the Second Judicial Department, but may be granted only at a Supreme Court in the Third Department, where all relevant defendant public officials in this action are "located." The trial court's conclusion that Respondents were not seeking to enjoin exercise of a statutory duty under CPLR 6311(1) because the Governor had no statutory duty to appoint a Lieutenant Governor (Order at 10) is circular and erroneous. It amounts to a conclusion that any attempt to restrain a public officer from performing his or her duty should not be governed by CPLR 6311 because the challenged conduct is purportedly invalid. This reasoning puts the cart before the horse, and if accepted, would enable every plaintiff seeking injunctive relief in respect of state action to avoid the requirements of CPLR 6311. Moreover, the preliminary injunction does not enjoin the Governor from appointing a Lieutenant Governor. and Lieutenant Governor Ravitch has, in fact, been appointed to and sworn into office. Instead, the preliminary injunction 4

restrains Lieutenant Governor Ravitch, and seeks to prevent him from "exercising any of the powers of the office of Lieutenant-Governor" — a restraint which necessarily includes any and all statutory duties that Lieutenant Governor Ravitch has. Pursuant to CPI,R 6311, this relief can only be sought in the Third Department. The trial court, which was located in the Second Department, therefore erred in granting the preliminary injunction. The trial court also erred by finding CPLR 6311 inapplicable on the theory that the requested injunction was merely "incidental" to the declaratory relief sought in this matter. (Order at 9). First, the court erred in characterizing plaintiff's request for a preliminary injunction as "incidental" to other relief sought. To the contrary, Respondent's request for a preliminary injunction was the only remedy properly before the trial court. Indeed, it was the only relief granted by the trial court in the July 21 Order. As the sole remedy, the preliminary injunction could not be said to be "incidental" to any other relief. Second, the trial judge's reliance on Lefkowitz — the sole authority cited in its order -(Order at 9) is misplaced. In Lefkowitz, plaintiffs brought an action for a declaration that certain sections of the Railway Laws were unconstitutional and for a permanent injunction restraining the further enforcement of those statutes. 12 N.Y.2d at 309. They did not seek any preliminary injunctive relief. The Court of Appeals relied on this important distinction and held that because plaintiffs sought only declaration and a permanent injunction, the restriction in section 879 of the Civil Practice Act (the predecessor to 6311), which applied only preliminary relief, did not apply to the plantiffs' action. Here, by contrast, Respondent's request for a preliminary injunction was

the sole remedy properly before the trial court and was the sole remedy granted by the court. It N. as

not "incidental" to the major relief demanded; it was the only relief demanded.

B.

There Is Irreparable Harm Absent A Stay Pending Appeal

This injunction directly interferes with the Governor's agenda and prohibits the Lieutenant Governor's performance of the public's business. In direct contravention of CPLR 6311, the injunction nullifies the decision of Governor Paterson, who was elected on a statewide basis with former Governor Spitzer in favor of two state senators who have no standing to bring this lawsuit. This injunction should not stand. "In the absence of extraordinary circumstances, an officer should not be enjoined from the performance of the business of the public pending the outcome of an ouster proceeding." Cowan v. Wilkinson, 828 S.W.2d 610, 616 (Ky. 1992). See also In re Incorporation of Village of Purchase, 363 N.Y.S.2d 183, 184-185 (N.Y. Sup 1974) ("The Court will restrain a public officer from the performance of duties . . . only in the most extraordinary circumstances"); Peterson v. Corbin, 275 A.D.2d 35, 38 (2d Dep't 2000) (courts may not enjoin a public officer from acting "absent extraordinary circumstances"). An injunction that directly interferes with the Lieutenant Governor's performance of the public's business should not be imposed lightly, let alone one that directly interferes with the Governor's own performance of the public's business. Contrary to the Trial Court's conclusion, the harm that will arise from delaying the appointment and functioning of Lieutenant Governor Ravitch is manifest and irreparable. Article IV, Section 1 of the New York Constitution makes clear that the Governor and Lieutenant Governor are intended to be a political unit. Indeed, the Governor and the Lieutenant Governor are currently working hand-in-hand to address the grave financial circumstances in which the state finds itself. The preliminary injunction issued below completely disrupts that Constitutional design. Because the Constitution vests all executive power in a single officer — as opposed to a multi-member body such as the Legislature — it is especially important that the courts not impede the Governor in his executive functions. Disrupting the Governor's choice of 6

successor is a direct interference with the Governor's exercise of his constitutional rights and responsibilities. Every day the preliminary injunction stands, it continues to interfere with that function. That alone is reason to stay the preliminary injunction until such time as the Appellate Division can hear this matter. Moreover, although the stalemate has passed momentarily, the Senate is subject to daily instability. There are currently threatened defections and power-shifts between the parties, which could at any minute result in a shift in the identity of the Temporary President of the Senate. The preliminary injunction issued by the trial court therefore creates uncertainty that "prevent[s] public business from being effectively carried on." Valentin v. Simon, 98 Misc.2d 5, 10 (Sup. Ct. N.Y. Co. 1979); see Chatham Towers, Inc. v. Bloomberg, 6 Mise.3d 814 (Sup. Ct. N.Y. Co. 2004) ("Whenever a request for a preliminary injunction implicates public interests, a court should give some consideration to the balance of such interests in deciding whether a plaintiff's threatened irreparable injury and probability of success on the merits warrants injunctive relief."). This concern is especially acute Oven the current dire economic situation facing the State. As the Governor himself made clear in his address to the People of New York on July 8, 2009, New York is in the worst fiscal and economic crisis since the Great Depression. It is a time when government action is essential to stabilizing the State's economy and avoiding dire consequences. At this crucial time, the preliminary injunction issued by the trial court creates grave uncertainty about succession. If the Governor were to die or suffer an illness or accident that incapacitated him, while such an injunction were in effect, the well-being of the State would be imperiled because it would not be immediately clear who is legally authorized to perform his duties or who would be next in the line of succession. Moreover, the stability gained

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by Lieutenant Governor Raviteh's appointment will be undermined. The state cannot afford any more instability. In addition, because of past uncertainty as to who holds the office of Temporary President, the Governor has not traveled outside the State's borders since the stalemate arose on June 8, 2009. Such travel is often essential for the Governor to carry out his duties. The issuance of a preliminary injunction that casts doubt on the succession process similarly compels the Governor not to travel outside the State. This is not an equitable resolution for the people of New York. The equities in this case thus weigh heavily in favor of a stay pending appeal of the preliminar y injunction. H. THE COURT SHOULD ORDER AN EXPEDITED APPEAL

Expedited appeal is appropriate where, as here, the issues are of public importance. See Amalgamated Transit Union, Local 1202 v. Greyhound Lines, Inc., 157 A.D.2d 167 at 167 (1st Dep 't 1990) (staying temporary restraining order issued by trial court enjoining employer from replacing striking employees and granting motion to expedite appeal, referrin g to "the public importance of the issue"); Matter of Troy Police Benev. and Protective Assn, Inc (City of Troy 293 A.D.2d 995, 995 (3d Dep't 1996) (granting request for expedited appeal). Regardless of whether a stay is granted, this Court should order an expedited briefing schedule and assign the appeal to the Active Case Management Program. The issues at stake in this ease — the occupancy of the second highest rankin g executive office in the state — could not be more important to the people of New York. Consistent with these stakes, both sides to this case have sought expedited process in this case, and have briefed the merits extensively in the Trial Court. Accordingly, expedited appeal is appropriate.

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CONCLUSION For the foregoing reasons, Appellants respectfully request this Court enter an Order staying the order appealed below pursuant to CPLR 5518 and CPLR 5519(c); or in the alternative, that this court deny the instant motion as academic on the grounds that Appellants are entitled to a statutory stay pursuant to CPLR 5519(a), and that pending the hearing and determination of the within appeal that the order appealed below is hereby stayed, and further on the appeal from the order below, and that the appeal in this matter be heard in an expedited basis and that the appeal be assigned to the Active Case Management Program and that a Scheduling Order be issued, together with such other and further relief as the Court deems just and appropriate.

Respectfully submitted, QUINN, EMANUEL, UR HART, OLIVER & HEDGES P

Sul an Kathie ay Fait Rob rt Jum 51 Madison Avenue 22d Floor New York, NY 10022 (212) 849-7000 Counsel for Appellants Date: July 22, 2009

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