APPEAL by the County Legislature of the County of Suffolk and William J. Lindsay, Presiding Officer, in a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination of the County Legislature of the County of Suffolk dated May 13, 2008, denying a legislative point of order made by the petitioner/plaintiff challenging the discharge of resolution IR-1105-2008 from a committee of the County Legislature of the County of Suffolk for a vote by the full County Legislature of the County of Suffolk, and to permanently enjoin the County Legislature of the County of Suffolk from considering, voting on, or enacting resolution IR-1105-2008 and action for a judgment declaring that the discharge of the resolution from the committee for a vote by the full County Legislature of the County of Suffolk is unlawful, from a judgment of the Supreme Court (Ralph F. Costello, J.), entered in Suffolk County on July 29, 2008, which, upon an order of the same court dated June 17, 2008, denying their motion to dismiss the petition/complaint pursuant to CPLR 3211(a) and 7804(f), granted the petition to the extent of annulling the determination and directing the County Legislature of the County of Suffolk to reconsider its interpretation of its own internal rules and procedures.
The opinion of the court was delivered by: Dickerson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN CHERYL E. CHAMBERS, JJ.
In 2008 a committee of the respondent/defendant County Legislature of the County of Suffolk (hereinafter the County Legislature) voted to deny a legislative point of order challenging the discharge of a resolution to a vote by the full County Legislature, and subsequently discharged the resolution to the full County Legislature. The respondent/defendant William Lindsay, in his capacity as Presiding Officer of the County Legislature, participated in the committee's vote to discharge. Subsequently, the petitioner/plaintiff Ricardo Montano (hereinafter the petitioner), a member of the County Legislature, but not a member of the subject committee, commenced the instant hybrid proceeding and action against the County Legislature and Lindsay, inter alia, to review the committee's discharge, to enjoin the County Legislature from voting on the resolution, and for a judgment declaring that the discharge was unlawful and invalid. The County Legislature and Lindsay moved to dismiss the petition pursuant to CPLR 3211(a) and 7804(f). The Supreme Court denied the motion and granted the petition to the extent of annulling the determination denying the legislative point of order and discharging the resolution to the full County Legislature, and directing the County Legislature to reconsider its interpretation of its own internal rules and procedures. We reverse. Power of Presiding Officer
According to the Rules of the County Legislature (hereinafter the Rules), the Presiding Officer of the County Legislature possesses the power to establish committees and to appoint members and assign resolutions to those committees, and is "a voting member ex-officio of all Legislative committees." Additionally, pursuant to Rule 6(B), legislation "shall be eligible for a vote by the full Legislature only if it [has] been discharged by at least a majority of the entire membership of the Legislative committee to which it has been assigned."
Introduction of IR 1105-2008 and its Discharge from Committee
In early 2008 legislation concerning occupational licenses, which was designated as resolution IR 1105-2008 (hereinafter the Resolution), was proposed in the County Legislature. Lindsay, as Presiding Officer, assigned the Resolution to the Consumer Protection Committee (hereinafter the Committee) for consideration. The Committee consisted of five members: Lynne Nowick, Thomas Barraga, Kate Browning, Jack Eddington, and Elie Mystal.
On April 17, 2008, the Committee convened a meeting, at which Committee members Nowick, Barraga, Browning, and Eddington were present. Committee member Mystal was not present. In addition to the "regular" Committee members, Lindsay was present in his capacity as Presiding Officer. On that day, Lindsay voted with the Committee on those tabled bills that had been referred to the Committee.
One such tabled bill was the Resolution. Nowick and Eddington voted to discharge the Resolution for a vote by the full County Legislature. Barraga voted against discharging the Resolution. Browning abstained. Lindsay cast his vote to discharge the Resolution for a vote by the full County Legislature. Thus, the votes were tallied at three to discharge, one opposed, one abstaining, and one not present. The Resolution was ruled discharged from the Committee, and it was then placed on the agenda of the General Session Meeting of the full County Legislature for April 29, 2008.
The Instant Proceeding and Action
The petitioner commenced this hybrid proceeding and action in the Supreme Court, Suffolk County, on April 28, 2008, seeking to annul the Committee's determination to discharge the Resolution pursuant to CPLR 7803(2) and (3), and to permanently enjoin the County Legislature from considering, voting on, or enacting the Resolution at the General Session Meeting of April 29, 2008, or at any subsequent General Session Meeting, and for a judgment declaring that the discharge of the Resolution from the Committee violated County Legislature Rule 6(B).
In an affidavit submitted in support of his first and second causes of action, the petitioner noted that there are five standing members of the Committee and that, in a regularly attended meeting, three votes would be required to discharge a bill. The petitioner argued, in essence, that when the Presiding Officer votes, as Lindsay did on the Resolution, both his vote and his presence as a voter should be counted, thus requiring four votes to establish a majority and to discharge a bill. Accordingly, the petitioner contended that, since the Resolution only received three votes, it was improperly discharged.
The petitioner explained that, in his capacity as Chairperson of the Budget and Finance Committee, he did not interpret Rule 6(B) in the same manner as Lindsay. He asserted that if a similar voting result occurred in the Budget and Finance Committee, he would rule that the bill was not discharged. Thus, as articulated by the petitioner, there are two different interpretations of Rule 6(B) followed in the County Legislature.
On April 29, 2008, the Supreme Court granted a temporary restraining order (hereinafter the TRO), inter alia, restraining the County Legislature and Lindsay (hereinafter together the appellants) from taking any action with respect to the Resolution. Accordingly, the County Legislature did not vote on the Resolution at the General Session Meeting of April 29, 2008.
On May 8, 2008, the appellants moved, by order to show cause, for leave to appeal to this Court from the TRO and to vacate, cancel, dismiss, and/or modify the TRO. The order to show cause was ...