40 N.Y.2d 397 | NY | 1976
Lead Opinion
Petitioners, Republican members of the New York State Senate and Assembly, commenced this article 78 proceeding to set aside the Legislature’s election of three Regents of the University of the State of New York. The Supreme Court granted the relief requested, annulling the determination of the Lieutenant Governor and the Speaker of the Assembly that Jorge L. Batista, Mary Alice Kendall and Louis E. Yavner were duly elected Regents of the University of the State of New York, annulling the certificates of election executed in conjunction with that determination, and enjoining the three from acting as Regents. Upon appeal, the Appellate Division, after converting the article 78 proceeding into an action for a declaratory judgment, modified the judgment, on the law. It reversed that portion of the judgment annulling the determination and the certificates and enjoining and prohibiting the three from acting as Regents; it dismissed so much of the petition as requested relief against the three Regents and Theodore Black, the Chancellor of the Board of Regents; and it declared that a quorum of the joint session had been present on March 11, 1975, but that the joint session had not been duly convened and was therefore invalid. Cross appeals from that order have been taken by the Lieutenant Govenor and the Speaker of the Assembly, by the three challenged Regents, and by the original petitioners. For the reasons which follow, we would reverse that order and dismiss the petition.
In 1975 there occurred three vacancies on the State Board of Regents. The Assembly and the Senate, each controlled by different political parties, were unable to fill the vacancies by concurrent resolution on or before March 4, 1975. Therefore, pursuant to section 202 of the Education Law, it became necessary for the two houses to meet in joint session at noon on March 11, 1975, to fill the vacancies by joint ballot.
Upon her arrival in the Assembly Chamber, the Lieutenant Governor, at the invitation of the Assembly Speaker, called the joint session to order and dispatched a delegation to notify the Senate members that the Assembly was awaiting their presence. Apparently no Senators were in the Assembly Chamber at that time, and none arrived subsequently. Thus, after a short time, the joint session was recessed.
During this recess, at a time when the Senate also stood in recess, the leaders of both houses met to resolve this deadlock, but no progress was made. Following its recess, with the Lieutenant Governor still absent, the Senate adopted a resolution calling for adjournment of the joint session until 11:00 a.m. on the following day and also calling for the appointment
This resolution was never considered by the Assembly. Instead, at approximately 5:40 p.m., the Lieutenant Governor reconvened the joint session in the Assembly Chamber. It was at this session that Jorge L. Batista, Mary Alice Kendall and Louis E. Yavner were nominated and elected Regents of the University of the State of New York. At all relevant times this joint session was attended by fewer than half of the 60 Senators but by more than half of the 150 Assemblymen.
We are asked to determine whether this joint session was duly convened and whether a quorum was present at the time of the election. Preliminarily, however, we must decide a threshold question; that is, whether this case involves merely an internal administrative dispute- within the Legislature which the courts should refrain from entertaining. In urging this position, the three Regents place particular reliance upon Matter of Gottlieb v Duryea (38 AD2d 634, aifd without opn 30 NY2d 807, cert den 409 US 1008). In that case Gottlieb, a
The rule articulated in Powell v McCormack (supra), Matter of Gottlieb v Duryea (supra) and similar cases has come to be known as the "political question doctrine”, a regrettable misnomer to the extent that it implies that a case which involves a political question is not justiciable. We are constantly asked to decide cases with obvious political overtones. Legislative apportionment (e.g., Matter of Schneider v Rockefeller, 31 NY2d 420), legislative responses to New York City’s financial crisis (e.g., Sgaglione v Levitt, 37 NY2d 507; Wein v State oNew York, 39 NY2d 136), enactment and payment of allow
On the merits, we turn first to the question of whether the joint session was duly convened. We conclude that it was. Section 202 of the Education Law specifically provides that the two houses "shall meet in joint session” at noon on the second Tuesday of March to elect Regents where they have not been able to elect such Regents by concurrent resolution (emphasis added). No formal resolution, as such, by either branch of the Legislature was necessary to convene this joint session mandated by law. Once the specified hour had passed, we think the procedure utilized here was sufficient to convene the joint session. Following receipt of word that the Assembly was ready to proceed in joint session, the Lieutenant Governor, acting as President of the Senate, adjourned the Senate and announced her intention to convene the joint session of the Legislature in the Assembly Chamber. Upon arrival in that chamber, at the invitation of the Speaker, she did convene the joint session. Thus, there can be no question that both houses had not only constructive notice, by virtue of the statute, but also actual notice that the joint session, required by section 202, was being called at that time.
A matter related to this issue concerns the fact that no joint resolution had been passed specifying the rules which would govern the joint session. Certainly, once the joint session was convened, the Legislature, sitting as a unicameral body, could have agreed upon a set of rules governing it. However, there is no such requirement, statutory or otherwise, and where no such rules have been agreed upon, a joint session is governed by the generally accepted rules of parliamentary procedure which flow from general principles of common law. (59 Am Jur 2d, Parliamentary Law, § 3, p 319.)
Turning to the issue of whether there was a quorum present for the election of Regents, we reject the claim that in order for there to be a quorum of the joint session there must be present a majority of the total number of Senators and also a majority of the total number of Assemblymen.
Accordingly, the order of the Appellate Division should be reversed and the petition dismissed.
. Section 202 of the Education Law provides, in relevant part, as follows: "Each regent shall be elected by the legislature by concurrent resolution in the * * * March [preceding the commencement of the term of office on April 1], on or before the first Tuesday of such month. If, however, the legislature fails to agree on such concurrent
. This resolution reads in full:
"RESOLVED, (If the Senate concur), That at the hour of twelve o’clock noon today, the Senate and Assembly meet in joint assembly in the Assembly Chamber for the purpose of nominating and electing by joint ballot a Regent-at-Large of the University of the State of New York in place of Edward M. Warburg, County of New York, Regent-at-Large, whose term has expired.
"Also, for a Regent of the University of the State of New York in place of Joseph W. McGovern, County of Bronx, First Judicial District, who has resigned.
"Also, for a Regent of the University of the State of New York in place of Helen B. Power, County of Monroe, Seventh Judicial District, who has resigned.”
. The Senate resolution reads as follows:
"Resolved (if the Assembly concur), That the Senate and Assembly being constituted in joint session on this day, March eleventh, nineteen hundred seventy-five, in joint session in the Assembly Chamber, for the purpose of nominating and electing, by joint ballot, regents of the University of the State of New York in the following order:
"(i) A Regent of the University of the State of New York in place of Joseph W. McGovern, county of Bronx, First Judicial District, who has resigned;
"(ii) A Regent of the University of the State of New York in place of Helen B. Power, county of Monroe, Seventh Judicial District, who has resigned; and
"(iii) A Regent-at-large of the University of the State of New York in place of Edward M. M. Warburg, county of New York, Regent-at-large, whose term has expired; and
"Whereas, It is necessary for the proper conduct of the joint session on March twelfth, nineteen hundred seventy-five that rules of procedure be adopted, be it further resolved that a bipartisan committee consisting of one member appointed by the Temporary President of the Senate, one member appointed by the Speaker of the Assembly, one member appointed by the Minority Leader of the Senate and one member appointed by the Minority Leader of the Assembly, be immediately constituted; and be it further
"Resolved (if the Assembly concur), That the joint session of March eleventh, nineteen hundred seventy-five adjourn and meet at 11 A.M. on March twelfth, nineteen hundred seventy-five as aforesaid and that the procedures to be followed at such joint session be those recommended by the bipartisan committee herein created.”
. Twenty-six Senators and 148 Assemblymen were present.
. We attach little significance to the fact that this case involves the construction of a statute, rather than a constitutional provision as in Powell v McCormack (395 US 486, supra).
. It should be noted that the proposed joint resolution passed by the Senate acknowledged the existence of the joint session, by referring to the Senate and Assembly as "being constituted in joint session on this day * * * in joint session in the Assembly Chamber”. (Emphasis added.)
. The joint session was composed of 60 Senators and 150 Assemblymen, or 210 members. A majority of this number is 106. A quorum of the Senate is 31, and of the Assembly, 76. While 148 Assemblymen were present, only 26, five short of a majority, of the members of the Senate were in attendance. However since 174 legislators attended, there was clearly a majority of the total number of members of the joint session.
. Since we agree that the petition should be dismissed, it is not necessary for us to determine whether an article 78 proceeding or an action for a declaratory judgment is the proper procedural vehicle in which to challenge an election under section 202 of the Education Law.
Dissenting Opinion
(dissenting). I respectfully dissent. Controlling, and dispositive of the critical issue presented, is that provision in section 9 of article III of the New York Constitution which mandates that a "majority of each house shall constitute a quorum to do business”. I find no infirmity with the majority’s conclusion that section 202 operates sua sponte to compel a joint session with no requirement of further resolution or "call”. However, notwithstanding the fact that the Legislature is to meet in joint session, it is axiomatic that, in order for that body to meet in such a manner, and do whatever business may be before it, both "houses” of the Legislature must be present. Section 202 of the Education Law itself requires that the "two houses shall meet in joint session”, not that the legislators as individuals shall jointly meet (emphasis added). I think the Constitution is clear in the requirement that for a
Beyond the express and plain mandate of section 9 of article III, the Constitution does not address itself to rules governing joint meetings of the Legislature; the rules of procedure for such meetings are therefore internal "housekeeping” matters to be determined by the two houses in joint session or, in the absence of any agreed-upon rules, by accepted parliamentary procedure. Nevertheless, as to the prerequisites for a joint session, the constitutional mandate is inevasible; no statutory purpose, however salutary, may override it. The majority’s reasoning that a requirement of a quorum of each house may render section 202 of the Education Law ineffective and enable a majority of one house to frustrate its purpose must fall before the constitutional rule.
I would not disturb the Appellate Division decision to convert petitioners’ article 78 proceeding into a declaratory judgment action. Therefore, since it is conceded that less than a majority of the Senate attended the purported joint meeting of March 11, 1975, I would modify the order of the Appellate Division and declare that a quorum of each house is necessary for a valid joint session of the Legislature and otherwise affirm the determination that the joint session of March 11, 1975 was invalid.
Chief Judge Breitel and Judges Jones, Wachtler, Fuchs-
Order reversed, without costs, and the petition dismissed.