STATE OF NEW YORK APPELLATE DIVISION - THIRD DEPARTMENT _____________________________________________ ROBERT L. SCHULZ, Plaintiff-Petitioner-Appellant, - against A.D.

Docket No. 516341 Albany Cty Index No. 1232-13 STATE OF NEW YORK EXECUTIVE, ANDREW CUOMO, Governor; STATE OF NEW YORK LEGISLATURE, SHELDON SILVER, Speaker of the New York State Assembly; DEAN SKELOS, Temporary President and Republican Coalition Leader, JEFFREY KLEIN, Temporary President and Democrat Coalition Leader, Defendants-Respondents-Respondents. ______________________________________________________________________________

APPELLANT’S REPLY BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
_________________________________________________________________

March 24, 2013

Robert L. Schulz 2458 Ridge Road Queensbury, NY 12804 518.656.3578

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PLAINTIFF HAS A HIGH LIKELIHOOD OF SUCCESS ON THE MERITS A. There Is No Wall Of Separation Between The Branches
Respondents (hereinafter the ―State‖) argue, ―enactments of the Legislature – a coequal branch of government - may not casually be set aside by the Judiciary.‖ (Aff. at 7-8) Plaintiff has satisfied the heavy burden of establishing, with proof beyond a reasonable doubt, the unconstitutionality of the SAFE ACT. The NY SAFE ACT, enacted in violation of the three-day rule of Article III, Section 14 of the NY Constitution (and by extension the Right to Petition for Redress of Grievances, guaranteed by Article I, Section 9 of the NY Constitution and by the last ten words of the First Amendment to the U.S. Constitution), Article XII of the NY Constitution and the Second Amendment to the U.S. Constitution, suffers wholesale constitutional impairment ―in any degree and in every conceivable application,‖ quoting Matter of Moran Towing Corp. v Urbach, 99 NY2d 443, 448 [2003], The Legislature‘s procedural matters are not, as was argued by the State in the Court below, ―wholly internal‖ to the Legislature and beyond judicial review under separation of powers. Article III, Section 14 of the State Constitution prescribes how a bill could become a law and explicitly allocates the distribution of authority and powers between the Executive and Legislative Branches. The key provision grants law-making authority from the People as follows:
―No bill shall be passed or become a law unless it shall have been printed and upon the desks of the members, in its final form, at least three calendar legislative days prior to its final passage, unless the governor, or the acting governor, shall have certified, under his or her hand and the seal of the state, the facts which in his or her opinion necessitate an immediate vote thereon, in which case it must nevertheless be upon the desks of the members in final form, not necessarily printed, before its 2

final passage; nor shall any bill be passed or become a law, except by the assent of a majority of the members elected to each branch of the legislature; and upon the last reading of a bill, no amendment thereof shall be allowed, and the question upon its final passage shall be taken immediately thereafter, and the ayes and nays entered on the journal.‖ (emphasis added) NY Constitution, Article III, Section 14

Thus, the Constitution expressly requires a message of necessity to be based on facts that are truthful and reasonable and that justify the immediate consideration of a bill by the legislators. The putative authority of the Governor to say in this message of necessity that the bill, if enacted, would ―immediately‖ ban ―the ownership, purchase and sale of assault weapons and large capacity ammunition feeding devices, and eliminate them from commerce in New York State‖ when the statement is not true, is not found in the Constitution. The putative authority of the Secretary of the Senate to tell the rank and file, voting members of the Senate, when asked by the President of the Senate to read the last section of the bill, ―This act shall take effect immediately‖ when the statement is not true, is not found in the Constitution. The putative authority of the Secretary of the Senate to tell the rank and file, voting members of the Senate, when asked by the President to read Calendar Number 1, ―Senate Print 2230, an act to amend the Criminal Procedure Law (period),‖ when, in fact, Senate Print 2230 is an act to amend the Correction Law, the Family Court Act, the Executive Law, the General Business Law, the Judiciary Law, the Mental Hygiene Law, the Penal Law and the Surrogate‘s Court Procedure Act, as well as the Criminal Procedure Law is not found in the Constitution. Neither does that reading of the bill satisfy the requirement of the phrase found in Article III, Section 14 of the NY Constitution, to wit, ―and upon the last reading of the bill….‖ The record

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before the Court shows said reading by the Secretary was the first, last and only reading of the bill by the Senate. ―To permit the Legislature to use its general rule-making powers, pertaining to in-house procedures, to create this substantive authority is untenable.‖ King v. Cuomo, 81 N.Y.2d 247, 252. ―[I]t would be dangerous in the extreme to extend the operation and effect of a written Constitution by construction beyond the fair scope of its terms, merely because a restricted and more literal interpretation might be inconvenient or impolitic, or because a case may be supposed to be, to some extent, within the reasons which led to the introduction of some particular provision plain and precise in its terms… That would be pro tanto to establish a new Constitution and do for the people what they have not done for themselves" King v. Cuomo, 81 N.Y.2d 247,253. “If the guiding principle of statutory interpretation is to give effect to the plain language ( Ball v Allstate Ins. Co., 81 NY2d 22, 25; Debevoise & Plimpton v New York State Dept. of Taxation & Fin., 80 NY2d 657, 661; McKinney's Cons Laws of NY, Book 1, Statutes § 94), ‗[e]specially should this be so in the interpretation of a written Constitution, an instrument framed deliberately and with care, and adopted by the people as the organic law of the State‘ ( Settle v Van Evrea, 49 NY, at 281,supra). These guiding principles do not allow for interstitial and interpretative gloss by the courts or by the other Branches themselves that substantially alters the specified law-making regimen. Courts do not have the leeway to construe their way around a self-evident constitutional provision by validating an inconsistent ‗practice and usage of those charged with implementing the laws‘ ( Anderson v Regan, 53 NY2d 356, 362, supra; see also, People ex rel. Burby v Howland, 155 NY 270, 282; People ex rel. Crowell
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v Lawrence, 36 Barb 177, affd 41 NY 137; People ex rel. Bolton v Albertson, 55 NY 50, 55,supra).‖ King v. Cuomo, 81 N.Y.2d 247, 253.

B. Plaintiffs’ Article III, Section 14 Claim Is Justiciable
The State argues that Plaintiff‘s claim under Article III, Section 14 of the NY Constitution is nonjusticiable. Quoting Maybee v. State of New York, 4 N.Y.3d 415, 419 (2005), the State argues the ―Constitution on its face makes the Governor‘s judgment of the facts determinative; he or she is to state some facts that ‗in his or her opinion‘ necessitate prompt action. Whether a court‘s opinion is or is not the same as the Governor‘s does not matter.‖ (Aff. At 9). However, in the very next sentence, the Maybee Court held, “Some contexts might justify reading into a statute or constitutional provision a requirement that a public official's "opinion" be reasonable.” Maybee at 420. Such is the case when it comes to the three-day rule of Article III, Section 14 of the NY Constitution, notwithstanding the ill-considered and unwise words of the majority of the deeply divided Maybee court that followed this, the majority‘s, reference to the need for reasonable opinions when interpreting certain statutes and constitutional provisions. Yes, the Maybee Court was clearly divided 4-3 on whether the message of necessity then before the Court satisfied the constitutional requirements of Article III, Section 14. There was the opinion by Judge R.S. Smith with Judges Rosenblatt, Graffeo and Read concurring (the ―majority‖). Then there was the opinion by Judge Judith Kaye with Judges G.B Smith and Ciparick concurring (the ―minority‖).

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The minority opinion was clearly a dissenting opinion. By its language, so plain it leaves no room for interpretation, the minority explicitly condemned the majority opinion, using one condemnatory sentence after another, in its ―dissent,‖ including:  ―Today, however, the Court honors neither the words, nor the surprisingly long and substantial history, of this constitutional provision [Article III, Section 14].‖ Maybee at 422.  ―In an effort to break with past practice and ensure that both legislators and the public would know the content of bills being voted on by the Legislature, the Constitution of 1894 required – for the first time – that bills be printed and distributed to the members of the Legislature at least three days before final passage (see 1984 Constitution, Art III, Section 15). The objects of this reform were to prevent hasty and careless legislation, to prohibit last-minute amendments – deemed to be ‗one of the principle evils in the way of legislation‘ (1 Revised Rec, 1894 NY Constitutional Convention, at 902) – and to secure public comment prior to passage (citations omitted).‖ Maybee at 422.  ―In contravention of the clear words and intent of the constitutional framers not only in 1894 and 1915 but also in 1938, the Court today endorses the pro forma issuance of messages of necessity without limitation … The common thread woven through 44 years of constitutional history is that messages of necessity were meant to be the exception, not the rule.‖ (emphasis in the original). Maybee at 424.  ―Of course, as the Constitution makes clear, the facts must justify immediate consideration in the Governor‘s opinion.‖ (emphasis by Plaintiff). Maybee at 425.

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―To sanction the instant message is to read the provision out of the Constitution. This, not the Governor, the Legislature or this Court – nor all three together — is empowered to do. Maybee at 426.

However, the minority filed its ―dissenting‖ opinion as a concurring opinion. As Judge Kaye wrote, she was forced to concur in the result simply, ―because – although the very purpose of the amendment at issue here was to avoid pro forma messages of necessity – it has nevertheless become the practice of government that messages like the one before us have been routinely used. To strike or put in doubt legislation enacted on such messages would lead to great unsettlement. Thus, while I conclude that the instant message failed to comply with the constitutional mandate of Article III, Section 14, I would give this ruling prospective effect only.‖ (emphasis by Plaintiff). Maybee at 426. Finally, it is worth noting the (ill-founded) reasons the majority gave for its opinion that the intent and spirit of Article III, Section 14 is that the People and the Judiciary must bow to and give ―complete deference‖ to the views of the Governor as expressed in any of his Messages of Necessity:
― [T]here are several reasons for giving complete deference to the Governor's views: The Governor is far better equipped than the courts to assess the need for speedy passage of a bill; the very need for haste that prompts him or her to issue a certificate may make it difficult to prepare a detailed and persuasive statement of the reasons for it; the Legislature has its own remedy for an inadequate certificate, since if it does not think the Governor's reasons are good ones, it is not required to act in fewer than three days--or even to consider the bill at all; and the consequences of judicial second-guessing of the Governor's and the Legislature's choice to expedite passage can be draconian. If we accepted plaintiff's argument here, any statute, no matter how important to the state, would have to be thrown out by the courts if the facts stated in the certificate of necessity that permitted its prompt passage were found insufficient.‖ (Maybee at 420) (emphasis by Plaintiff).

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What is so draconian if, as has been the practice and expectation since Marbury v Madison 5 U.S. 137 (1803), a responsibility of the Court is to keep the other two branches in their constitutional places by applying the Law of the Constitution to the facts of the case before it, when called upon to do so by the People whose law it is to begin with? Draconian, inhumanly cruel and severe, when viewed through the prism of the history, meaning, effect, significance and underlying principles of the provisions of our constitutions, has been the inexorable tyranny of the relentless ―back room‖ deals by the leaders of the Legislature and the Governor that call for the use of a Governor‘s message of necessity, and a decree by the Leaders deciding what is to be done by the rank and file, all to enact controversial laws for reasons that have to do with political expediency, rather than a constitutionally legitimate need for speed. Here, as Plaintiffs have argued in their Complaint, and in support of their motions for preliminary injunctive relief, the Governor‘s opinion was clearly not reasonable or rational, showing little sense or judgment when taken out of the realm of politics and political expediency. For instance, heightened, if not strict scrutiny of the constitutionality of the SAFE ACT was required by the political branches in its enactment, rather than the absence of any and all scrutiny as arrogantly arranged by the Governor and the leaders of the Legislature late in the day on January 14, 2013, with the Governor‘s Message of Necessity and a decree from the leaders to the rank and file key elements of the arrangement. See statements of facts, Record on Appeal, pages 241- 243 and 249-253. Schulz Affidavit of even date, Exhibit A. Heightened or strict scrutiny is required by the State (all branches) to determine whether certain types of proposed government policies are constitutional. Where a proposed law might infringe on a fundamental, constitutionally protected Right, such as those guaranteed by the First
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and Second Amendment to the U.S. Constitution, and Article XII, Section 1 of the NY Constitution, heightened or strict scrutiny of the constitutionality of the proposed law is required by the Government. The Government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result. The State also complains that ―Plaintiff cites no authority for his claim that the Governor‘s certification of a message of necessity becomes subject to judicial review when the Legislature adopts a statute with potential constitutional import.‖ (Aff. at 10) Plaintiff‘s claim is ―first impression.‖ Every legal argument has its beginning – its ―first impression‖: case law then follows. Here, the claim was first presented in Plaintiffs‘ Verified Complaint, where Plaintiffs argued, ―This case is distinguishable from all other court cases relating to an alleged violation of the so-called ―three-day rule‖ under Article III, Section 14 of the NY Constitution. A review of the case law results in the conclusion that unlike the instant case, none of the earlier cases involved a Message of Necessity or a law that infringed on a constitutionally protected fundamental Right, such as a Right protected by the First or Second Amendments to the Constitution for the United States of America, or a Right protected by the Bill of Rights of the Constitution for the State of New York.‖ (emphasis in the original). See Record on Appeal, pages 243-247, paragraphs 41-58. Schulz Affidavit of even date, Exhibit B. In addition, as Plaintiffs have argued, the Governor‘s Opinion that the bill needed immediate consideration by the Legislature was based on facts that were not true and there was absolutely no stated or resulting need for speed. As clearly evidenced by the record, the facts in the Governor‘s Message of Necessity did not agree with and flatly contradicted the plain language of the bill. And, contrary to the Governor‘s Opinion and the information given to the
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rank and file legislators by the leadership immediately before the vote, 53 of the 56 operative sections of the bill would become effective, not immediately, but 60 days after the bill became law; two sections would become effective one year after adoption and one section that became effective immediately merely required the million or so owners of the newly defined ―assault weapons‖ to register them sometime after 90 days of adoption of the law and no later than 450 days after adoption of the law. In their Response, the State still has not denied Plaintiffs‘ claim that the ―facts‖ given by the Governor when he stated, ―The facts necessitating an immediate vote on the bill …‖ were simply not true for they contradicted the plain language of the bill. An opinion devoid of a thing that has not actually happened or is not true or reality is not an opinion that meets the requirements of Article III, Section 14 of the NY Constitution. In their Response, the State still has made no showing of a need for speed in the enactment of the NY SAFE ACT. Defendants still have made no showing of a critical, stirring or notable incident, event or non-political occurrence of importance, resulting from the hasty and swift, 1/2 day enactment of the NY SAFE ACT. The State still has made no showing of an event that did not happen as a consequence of the enactment of the ACT, and still no suggestion of an event that would or could have happened, but for the immediate consideration of S2230. The State still has made no showing that ―Patrol rifles‖ or ―assault weapons‖ became less dangerous as a result of the enactment of the ACT.1

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When used by those who guard our capitols, bridges and tunnels, the firearms described in Section 37 of the NY SAFE ACT are called ―patrol rifles‖; when used by law abiding citizens they are referred to as ―assault weapons.‖

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The State still has made no showing the always dangerous and lethal ―assault weapons‖ and ―large capacity ammunition feeding devices‖ defined in Sections 37 and 38 of the NY SAFE ACT became less dangerous or less lethal as a result of enactment of the ACT. In fact, the Governor announced last Wednesday, March 20, 2013 that he would seek to ease the SAFE ACT‘s restriction on the maximum legal capacity of gun magazines. See Schulz Affidavit of even date, Exhibit C. The State still has not denied the fact that the immediate enactment by Defendants of the NY SAFE ACT did absolutely nothing to prevent another horrific mass shooting of ordinary citizens, school children or first responders. The State still has not denied the fact that neither the estimated one million ―assault weapons‖ owned by the citizens of New York on January 14, 2013, nor the estimated millions of large capacity ammunition feeding devices were reduced in number as a result of the enactment of the ACT. Again, the message of necessity was false and unreasonable and did not satisfy the constitutional requirements.

C. Plaintiffs Enjoy A Strong Likelihood Of Success On Their Article XII And Related Claims
The State simply brushes aside Plaintiffs‘ claims that the SAFE ACT violates Article XII of the NY Constitution, Article 2, Section 4 of the NY Civil Rights Law and the Second Amendment of the U.S. Constitution, saying the claims lack merit. However, Plaintiffs have a strong likelihood of success on these claims as well. See the Record on Appeal, pages 195-201. Schulz Affidavit of even date, Exhibit D.
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Plaintiff argued for instance, that in 1976, the Third Department let stand a lower court‘s holding that both the Constitution for the United States of America and NY Civil Rights Law, Article 2, Section 4, guarantee a citizen‘s Right ―to be armed with weaponry suitable for use by the militia in warfare and for the general defense of the community.‖ Guida v Dier (1975) 84 Misc 2d 110, 375 NYS2d 826, mod on other grounds (1976, 3d Dept) 54 App Div 2d 86, 387 NYS2d 720.

PLAINTIFF’S HARM IS IMMEDIATE AND IRREPARABLE In its response, the State alleged, ―Unlike this case, Elrod involved First Amendment rights …It is not simply not true, as plaintiff asserts, that all constitutional injuries are deemed irreparable….‖ Respondents‘ Affirmation at 12. The State has failed to recognize, much less deny Plaintiff‘s First Amendment Claim that by violating the three day rule under Article III, Section 14 of the NY Constitution, the State has abridged Plaintiff‘s First Amendment Right to Petition his Legislators and the Governor for a Redress of the Grievances related to the SAFE ACT. Memorandum of Law, March 14, 2013, page 7. In addition, the principle of law laid down in Elrod applies to all Rights guaranteed by the State and Federal Constitution where constitutional violations, such as a violation of the threeday rule of Article III, Section 14, itself, or the violation of Second Amendment due to the inability to visit a Federal Firearms Licensed Dealer and purchase any firearm or ammunition feeding device that was in common use prior to the enactment of the SAFE ACT, each an immediate loss of a Freedom and Liberty, cannot be adequately remedied through damages. The
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anxiety and stress that goes along with such loss of a constitutionally guaranteed Right constitutes irreparable injury. A BALANCING OF THE EQUITIES TIPS IN FAVOR OF PLAINTIFF The State has not denied Plaintiff‘s claim that should the preliminary injunction issue, the State‘s burden would be non-existent or minimal in view of the fact that: a) the State could easily and quickly repeal the SAFE ACT, place a new ―SAFE ACT‖ on the desks of the Legislators for at least three days, with all the technical corrections now being agreed to for the existing SAFE ACT, allowing the rank and file time to read and comprehend the bill, and allowing the People to petition their legislators to remedy any and all perceived grievances; b) the ―assault weapons‖ as defined and targeted by the NY SAFE ACT are not so ―dangerous‖ that under the language of the SAFE ACT itself, the current owners of the estimated one million ―assault weapons‖ in existence in New York State cannot keep owning them (until those owners die) and then pass them to immediate family members; and c) the ―large capacity ammunition feeding devices‖ as defined and targeted by the NY SAFE ACT are not so ―lethal‖ that under the language of the SAFE ACT itself, the current owners of the estimated ten million ―large capacity ammunition feeding devices‖ in existence in New York State cannot own them until January 14, 2014 – that is, for one full year following the day the Governor signed the Bill into law. A preliminary injunction will not disserve the public interest, but would affirmatively promote it. There is no indication that the waiver of the three-day rule of Article III, Section 14 and the restrictions imposed by the NY SAFE ACT that have imposed burdens on Plaintiffs‘ constitutional Rights will tend to produce more than a de-minimis reduction, if at all, of any negative secondary effects associated with the ownership of the newly defined ―assault weapons‖ and ―large capacity ammunition feeding devices.‖
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The State argues simply that ―Because of the breadth and public import of the underlying legislation, its implementation, intended to address serious public safety concerns, should not be enjoined.‖ Aff. at 14. On the contrary, the Record shows virtually every organization charged with public safety and public administration or similarly impacted by the SAFE ACT has taken a public position against the substance of the SAFE ACT and the manner in which the ACT was passed, including, but, as the record demonstrates, by no means limited to: 1. The New York State Sheriff‘s Association. Record on Appeal, pages 216-221. Schulz Affidavit of even date, Exhibit E. 2. The New York State Association of Counties. Record on Appeal, pages 213-215. Schulz Affidavit of even date, Exhibit F. 3. The New York State Conference of Local Mental Hygiene Directors. Record at 81-82. Schulz Affidavit of even date, Exhibit G. 4. The Warren County Sheriff. Record on Appeal at 209-210. Schulz Affidavit of even date, Exhibit H. 5. The New York State Association of County Clerks. Record at 211-212. Schulz Affidavit of even date, Exhibit I. 6. The dozens of County Legislatures and County Boards of Supervisors who have adopted formal Resolutions calling for the Repeal of the SAFE ACT. See Record on Appeal, pages 86-149. CONCLUSION Based on the above, and the prior paper and proceedings, Plaintiff respectfully requests an order:
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a) preliminarily enjoining, restraining and prohibiting Defendants NEW YORK STATE EXECUTIVE, ANDREW CUOMO, GOVERNOR; STATE OF NEW YORK LEGISLATURE, SHELDON SILVER, Speaker of the New York State Assembly; DEAN SKELOS, Temporary President and Republican Coalition Leader, JEFFREY KLEIN, Temporary President and Democrat Coalition Leader, their agents, and any agency or subdivision that arguably may act in this matter, from taking any action in furtherance of any provision of the NY SAFE ACT, signed into law on January 15, 2013, and directing the Governor to immediately notify all Departments, Divisions, agencies, and public corporations of the State of New York, by Executive Order or otherwise, of the preliminary stay of the implementation and enforcement of each and every provision of the NY SAFE ACT, until a final determination is issued by this court and any appeal there from; and, b) expediting the final determination of this action; and c) for such other and further relief as to the court may seem just and proper.

DATED: March 24, 2013 ROBERT L. SCHULZ Pro Se 2458 Ridge Road Queensbury, NY 12804 (518) 656-3578

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