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Published by Nick Reisman

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Published by: Nick Reisman on Jul 06, 2012
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 Appellate Division, Fourth Judicial Departmen
644CA 12-00313
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ. NEW YORKERS FOR CONSTITUTIONAL FREEDOMS,JASON J. MCGUIRE, DUANE R. MOTLEY ANDNATHANIEL S. LEITER, PLAINTIFFS-RESPONDENTS, VOPINION AND ORDER NEW YORK STATE SENATE, NEW YORK STATEDEPARTMENT OF HEALTH, DEFENDANTS-APPELLANTS,AND ERIC T. SCHNEIDERMAN, IN HIS OFFICIALCAPACITY AS THE ATTORNEY GENERAL OF THE STATEOF NEW YORK, DEFENDANT.ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (VICTOR PALADINO OFCOUNSEL), FOR DEFENDANTS-APPELLANTS.LIBERTY COUNSEL, LYNCHBURG, VIRGINIA (RENA M. LINDEVALDSEN OFCOUNSEL), AND JOSEPH P. MILLER, CUBA, FOR PLAINTIFFS-RESPONDENTS.Appeal from a judgment (denominated order) of the Supreme Court,Livingston County (Robert B. Wiggins, A.J.), entered November 18,2011. The judgment, insofar as appealed from, denied that part of themotion of defendants to dismiss plaintiffs’ first cause of actionagainst defendants New York State Senate and New York State Departmentof Health.It is hereby ORDERED that the judgment insofar as appealed fromis unanimously reversed on the law without costs, and judgment isgranted in favor of defendants-appellants as follows:It is ADJUDGED and DECLARED that defendant New YorkState Senate did not violate the Open Meetings Law (PublicOfficers Law art 7) in enacting the Marriage Equality Act (L2011, ch 95, § 3) and that marriages performed thereunderare not invalid.Opinion by F
, J.: This appeal arises from the passage of theMarriage Equality Act ([MEA] L 2011, ch 95, § 3), which permits same-sex couples to marry in this state (
Domestic Relations Law § 10-a). Plaintiffs unsuccessfully opposed the MEA, and thereaftercommenced this action to challenge the process by which it wasenacted. Defendants, New York State Senate, New York State Departmentof Health and Eric T. Schneiderman, Attorney General, State of NewYork, made a pre-answer motion to dismiss the verified complaintpursuant to CPLR 3211 (a) (1) and (7), and Supreme Court granted the
-2-644CA 12-00313
motion in its entirety with respect to defendant Attorney General.The court, however, granted the motion only in part with respect tothe two remaining defendants (collectively, defendants). The verifiedcomplaint’s first cause of action, alleging a violation of the OpenMeetings Law ([OML] Public Officers Law art 7) requiring nullificationof the MEA, is the sole cause of action to have survived motionpractice. In that cause of action, plaintiffs seek a declaration thatthe New York State Senate violated the OML in enacting the MEA andvoiding any marriages performed pursuant to that act.Defendants appeal, and in doing so bring before us none of thepolicy considerations relative to the MEA that lurk beneath theverified complaint in this action. Rather, our primary task on thisappeal is to interpret the exemption to the OML embodied in PublicOfficers Law § 108 (2) (hereafter, exemption). We cannot agree withthe court that the part of the exemption providing that politicalcaucuses may invite guests to participate in their deliberationswithout violating the OML should be read to limit eligible guests tomembers of the same political party of the political caucus thatissued the invitation. We thus conclude that the judgment insofar asappealed from should be reversed and that judgment should be entereddeclaring that the New York State Senate did not violate the OML inenacting the MEA and that marriages performed thereunder are notinvalid.We note at the outset that a motion to dismiss the complaint isnot the proper procedural vehicle for the relief sought by defendantsin this declaratory judgment action (
see generally Morgan v Town of W.Bloomfield 
, 295 AD2d 902, 904). Inasmuch as “this is a declaratoryjudgment action, we treat [defendants’] motion to dismiss for failureto state a cause of action under CPLR 3211 (a) (7) as a motion for adeclaration in [their] favor” (
Fekishazy v Thomson
, 204 AD2d 959, 962n 2;
see generally 
CPLR 2001).IAs noted, this appeal arises from the passage of the MEA and thelegalization of gender-neutral marriage in New York State.Legislation proposing to legalize such marriage failed in 2009, but in2011 four Republican State Senators
joined Democratic State Senatorsin voting for the MEA, which was signed into law by Governor AndrewCuomo on June 24, 2011. At the time the MEA was enacted, 32 of the 62members of the State Senate were Republicans.Our review begins with the verified complaint, which sets forthwhat is characterized as the series of events that precipitated thepassage of the MEA. In mid-May 2011, New York City Mayor MichaelBloomberg, a registered Independent, accompanied by New York CityCouncil Speaker Christine Quinn, a registered Democrat, metindividually with Republican State Senators to lobby on behalf ofAssembly Bill A8354-2011, which provided the foundation for whatultimately became the MEA. According to the verified complaint, MayorBloomberg’s lobbying efforts with respect to the assembly bill werenot limited to May 2011. Indeed, plaintiffs allege that Mayor
-3-644CA 12-00313
Bloomberg met with the entire Republican Conference of the Senate,i.e., 32 of the 62 Senators, in a closed meeting at the New YorkCapitol Building on June 16, 2011 (hereafter, Bloomberg meeting). Atthat meeting, Mayor Bloomberg spoke to the Republican Conference andpledged financial support for the campaigns of Republican Senators whovoted in favor of the MEA. In contrast to the access granted MayorBloomberg, neither plaintiff Duane R. Motley, the Senior Lobbyist withplaintiff New Yorkers for Constitutional Freedoms, nor plaintiffNathaniel S. Leiter, the Executive Director of Torah Jews for Decency,was permitted to address the Republican Conference that day.Similarly to Mayor Bloomberg, Governor Cuomo, a registeredDemocrat, lobbied on behalf of the MEA. According to the verifiedcomplaint, Governor Cuomo met privately with Republican Senators atthe Governor’s mansion to advocate for the MEA (hereafter, Cuomomeeting), and that meeting was not open to the public. The verifiedcomplaint alleges, upon information and belief, that a quorum of theState Senate was present for the Cuomo meeting, but it is unclearwhether the term “quorum” refers to all of the Republican Senators, asopposed to a mix of Republican and Democratic Senators. For purposesof this appeal, however, we assume that plaintiffs have alleged thatall of the Republican Senators were present for the Cuomo meeting.Plaintiffs do not specify a date on which the Cuomo meetingoccurred, but one of the exhibits to the verified complaint suggeststhat it may have been held on June 20, 2011. In the event that theCuomo meeting was indeed held on June 20, 2011, it occurred subsequentto the Assembly’s passage of the MEA on June 15, 2011, which wasfacilitated by a message of necessity from Governor Cuomo dispensingwith the constitutionally-mandated waiting period of three days forthe passage of bills (
NY Const, art III, § 14).Once passed by the Assembly, the MEA was delivered to the Senate,and during the week of June 20, 2011 there was what Motley describesas an “unprecedented” denial of public access to the RepublicanSenators. Plaintiffs allege that, on Tuesday, June 21, 2011,lobbyists and activists were locked out of the Senate lobby and that,on June 22 and 23, 2011, the Senate lobby was only partially reopenedto legislative staff and lobbyists. On Friday, June 24, 2011, thelockout resumed, thereby preventing the public from accessing theSenate lobby and the Republican side of the Senate chamber. Moreover,the Republican Senators allegedly turned off their cell phones on June24, 2011 and met for five hours on that date without providing foraccess to staff or the public.The MEA was amended on June 24, 2011 (hereafter, Bill) to includelimited protections for certain religious entities (
L 2011, ch 95,§ 3), and Governor Cuomo issued messages of necessity to the Assemblyand the Senate with respect to the Bill on that date, again dispensingwith one of the constitutional requirements for enacting a bill intolaw. The Bill, now identified as A8520-2011, passed the Assembly, andthereafter was passed by the Senate in a regular session by a vote of33 to 29. Governor Cuomo signed the Bill into law on June 24, 2011 at11:15 p.m.

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