In the Matter of Baldwin Union Free School District, et al., Respondents,v.County of Nassau, Appellant. (And an Action and Another Proceeding.)BriefN.Y.January 7, 2014To Be Argued By: RONALD J. ROSENBERG, ESQ. Time Requested: 30 Minutes APL-2013-00069 Court of Appeals STATE OF NEW YORK BALDWIN UNION FREE SCHOOL DISTRICT, et al., Petitioners/Plaintiffs-Respondents, - against - COUNTY OF NASSAU, Respondent/Defendant-Appellant. (Nassau County Index Nos. 3280/11, 4193-11, and 4381-11) (Full Captions on Following Pages) APPELLANTS’ BRIEF ROSENBERG CALICA & BIRNEY LLP Special Counsel for Appellants 100 Garden City Plaza–Suite 408 Garden City, New York 11530 (516) 747-7400 Fax: (516) 747-7480 Of counsel: Ronald J. Rosenberg Lesley A. Reardon Judah Serfaty NASSAU COUNTY ATTORNEY’s OFFICE One West Street Mineola, New York 11501 (516) 571-3056 Fax: (516) 571-6684 Attorneys for Appellants County of Nassau, the County Legislature, and County Executive Edward P. Mangano in Proceedings 1, 2, and 3 May 20, 2013 Full Caption - APL-2013-00069 Matter of BALDWIN UNION FREE SCHOOL DISTRICT, BELLMORE UNION FREE SCHOOL DISTRICT, BETHPAGE UNION FREE SCHOOL DISTRICT, CARLE PLACE UNION FREE SCHOOL DISTRICT, EAST MEADOW UNION FREE SCHOOL DISTRICT, EAST ROCKAWAY UNION FREE SCHOOL DISTRICT, EAST WILLISTON UNION FREE SCHOOL DISTRICT, ELMONT UNION FREE SCHOOL DISTRICT, FARMINGDALE UNION FREE SCHOOL DISTRICT, FLORAL PARK-BELLEROSE UNION FREE SCHOOL DISTRICT, FRANKLIN SQUARE UNION FREE SCHOOL DISTRICT, FREEPORT UNION FREE SCHOOL DISTRICT, GARDEN CITY UNION FREE SCHOOL DISTRICT, GREAT NECK UNION FREE SCHOOL DISTRICT, HERRICKS UNION FREE SCHOOL DISTRICT, HEWLETT-WOODMERE UNION FREE SCHOOL DISTRICT, ISLAND PARK UNION FREE SCHOOL DISTRICT, ISLAND TREES UNION FREE SCHOOL DISTRICT, JERICHO UNION FREE SCHOOL DISTRICT, LEVITTOWN UNION FREE SCHOOL DISTRICT, LYNBROOK UNION FREE SCHOOL DISTRICT, MANHASSET UNION FREE SCHOOL DISTRICT, MASSAPEQUA UNION FREE SCHOOL DISTRICT, MERRICK UNION FREE SCHOOL DISTRICT, NORTH BELLMORE UNION FREE SCHOOL DISTRICT, NORTH SHORE CENTRAL SCHOOL DISTRICT, OCEANSIDE UNION FREE SCHOOL DISTRICT, OYSTER BAY-EAST NORWICH CENTRAL SCHOOL DISTRICT, PLAINEDGE UNION FREE SCHOOL DISTRICT, PLAINVIEW-OLD BETHPAGE CENTRAL SCHOOL DISTRICT, PORT WASHINGTON UNION FREE SCHOOL DISTRICT, ROCKVILLE CENTRE UNION FREE SCHOOL DISTRICT, ROSLYN UNION FREE SCHOOL DISTRICT, SEAFORD UNION FREE SCHOOL DISTRICT, SEWANHAKA CENTRAL HIGH SCHOOL DISTRICT, UNIONDALE UNION FREE SCHOOL DISTRICT, VALLEY STREAM CENTRAL HIGH SCHOOL DISTRICT, V ALLEY STREAM UNION FREE SCHOOL DISTRICT THIRTEEN, VALLEY STREAM UNION FREE SCHOOL DISTRICT THIRTY, WEST HEMPSTEAD UNION FREE SCHOOL DISTRICT, WESTBURY UNION FREE SCHOOL DISTRICT, RANIER W. MELUCCI, Ed.D, Individually and as Superintendent of the Merrick Union Free School District, and CATHERINE FLANAGAN, Individually and as President of the Board of Education of the Plainedge Union Free School District. Petitioners/Plaintiffs-Respondents, -against- COUNTY OF NASSAU, Respondent/Defendant-Appellant. For Declaratory Judgment and Relief Pursuant to Section 3001 and Article 78 of the Civil Practice Law and Rules of the State of New York. Proceeding No. 1 Nassau County Index No. 3280/11 BARBARA HAFNER and LINDA WIENER, Plaintiffs-Respondents, -against- COUNTY OF NASSAU, NASSAU COUNTY LEGISLATURE And EDWARD P. MANGANO, in his capacity as County Executive of the County of Nassau, Defendants-Appellants. Proceeding No. 2 Nassau County Index No. 4193-11 THE TOWN OF NORTH HEMPSTEAD, ALBERTSON FIRE PROTECTION DISTRICT, CARLE PLACE FIRE PROTECTION DISTRICT, FLORAL PARK CENTRE FIRE PROTECTION DISTRICT, GLENWOOD FIRE PROTECTION DISTRICT, GREAT NECK FIRE PROTECTION DISTRICT, PORT WASHINGTON FIRE PROTECTION DISTRICT, ROSLYN FIRE PROTECTION DISTRICT, ALBERTSON-SEARINGTOWN-HERRICKS GARBAGE DISTRICT, GREAT NECK GARBAGE DISTRICT, MANHASSET GARBAGE DISTRICT, NEW CASSEL GARBAGE DISTRICT, NEW HYDE PARK-GARDEN CITY PARK GARBAGE DISTRICT, NORTH HEMPSTEAD LIGHTING DISTRICT, HARBOR HILLS PARK DISTRICT, MANHASSET BAY PARK DISTRICT, NEW HYDE PARK-CLINTON G. MARTIN PARK DISTRICT, PORT WASHINGTON PUBLIC PARKING DISTRICT, TOWN OF NORTH HEMPSTEAD SIDEWALK DISTRICT and GREAT NECK WATER DISTRICT, Petitioners/Plaintiffs-Respondent, For a Judgment Pursuant to Article 78 and § 3001 of the Civil Practice Law and Rules. -against- THE COUNTY OF NASSAU, Respondent/Defendant Appellants. Proceeding No. 3 Nassau County Index No. 4381-11 00092703-2 RULE 400.13(A) STATEMENT There is no other litigation pending between the parties related to Nassau County Local Law 18-2010, entitled “The Common Sense Act of 2010,” which is the sole subject of these three proceedings/actions. i00097779-4 TABLE OF CONTENTS Page TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. Creation of Nassau County And Enactment of The Nassau County Tax Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. Nassau County's Successful Efforts to Achieve Autonomy, Create An Alternative Form Of Government, And Rule Its Own Affairs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 C. Enactment of N.Y. Laws of 1936, Chapter 879. . . . . . . . . . . . . . . . . 11 D. Further Enhancements to the County Home Rule Law. . . . . . . . . . . 13 E. Nassau County Elects An Alternative Form of Government And Adopts Its Charter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 F. The State Legislature Enacts the Laws of 1939, Ch. 272, Providing An Administrative Code for Nassau County.. . . . . . . . . . 15 G. Collection and Refund of Property Taxes From 1938 to 1948. . . . . 17 H. The Board of Supervisors Asks The State Legislature To Enact The County Guaranty In 1948. . . . . . . . . . . . . . . . . . . . . . . . . 22 ii00097779-4 TABLE OF CONTENTS Page I. The Board of Supervisors Also Asks The State Legislature To Amend Section 607 of the Charter. . . . . . . . . . . . . . . . . . . . . . . . 24 J. The Real Property Tax Law Is Enacted In 1958. . . . . . . . . . . . . . . . 26 K. The 1963 Amendments to the New York Constitution. . . . . . . . . . . 27 L. Home Rule Laws Are Further Expanded. . . . . . . . . . . . . . . . . . . . . . 28 M. Pursuant To Its Broad Grant Of Authority, the County Enacts Numerous Local Laws Amending Its Administrative Code. . . . . . . 29 N. The County's Increasing Burden and Financial Crisis. . . . . . . . . . . . 29 O. The County Adopts Local Law 18-2010 Amending Its Administrative Code Entitled “The Common Sense Act” To Supersede and Repeal The County Guaranty. . . . . . . . . . . . . . . . 32 P. Respondents Commence Three Hybrid Actions/Proceedings, Challenging The Enactment of the Common Sense Act. . . . . . . . . . 34 Q. The January 4, 2012 Order of the Supreme Court, Nassau County, Correctly Dismissed the Petitions. . . . . . . . . . . . . . 35 R. The Appellate Division Erroneously Reverses. . . . . . . . . . . . . . . . . 35 STANDARD OF REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 iii00097779-4 TABLE OF CONTENTS Page POINT I NASSAU COUNTY POSSESSES THE AUTHORITY AND POWER UNDER THE LOCAL LEGISLATION ACT AND ITS CHARTER TO CHANGE OR SUPERSEDE THE SPECIAL LAW CREATING THE COUNTY GUARANTY, WHICH SPECIAL LAW DOES NOT APPLY "ALIKE TO ALL COUNTIES" BUT ONLY APPLIES TO THE COUNTY OF NASSAU. . . . . . . 38 POINT II THE APPELLATE DIVISION'S APPLICATION OF THE 1963 VERSION OF ARTICLE IX, §2 TO LIMIT THE COUNTY'S LOCAL LEGISLATIVE AUTHORITY WAS PATENTLY ERRONEOUS. . . . 49 POINT III EVEN IF ARTICLE IX, §2(C)(II) OF THE 1963 AMENDMENTS APPLIED, IT DOES NOT PROHIBIT THE COUNTY FROM ENACTING THE COMMON SENSE ACT AS A MATTER OF LAW.. . . . . . . 56 POINT IV EVEN IF ARTICLE IX, §2(C)(II)(8) APPLIED, THE COMMON SENSE ACT IS VALID AND PROPER BASED ON THIS COURT'S HOLDING IN SONMAX, INC. V. CITY OF NEW YORK, 43 N.Y.2D 253 (1977), WHICH ESTABLISHED THAT MUNICIPAL HOME RULE LAW §10(II)(1)(A)(8) EXEMPTS LOCAL LAWS RELATED TO PROPERTY TAXES FROM HAVING TO BE CONSISTENT WITH ANY OTHER LAWS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 iv00097769-6 TABLE OF AUTHORITIES 41 Kew Gardens Road Assoc. v. Tyburski, 70 N.Y.2d 325, 520 N.Y.S.2d 544 (1987). . . . . . . . . . . . . . . . . . . . . . 38, 50, 62-63 Bd. of Educ. of Glen Cove City School Dist. v. Nassau County, 33 A.D.3d 576, 822 N.Y.S.2d 143 (2d Dep’t 2006), lv. denied, 8 N.Y.3d 802 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 City of New York v. State, 94 N.Y.2d 577, 709 N.Y.2d 122 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 City of White Plains v. Del Bello, 87 A.D.2d 483, 452 N.Y.S.2d 71 (2d Dep’t 1982). . . . . . . . . . . . . . . . . . . 61-62, 64 Commonwealth of North Mariana Islands v. Canadian Imperial Bank, __ N.Y.3d __, 2013 WL 1798585 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 County of Nassau v. Inc. Village of Woodsburgh, 86 A.D.2d 856, 447 N.Y.S.2d 326 (2d Dep’t 1982). . . . . . . . . . . . . . . . . . . . . . . . 55 DJL Restaurant Corp. v. City of New York, 96 N.Y.2d 91, 725 N.Y.S.2d 622 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Dutchess County Dept. of Social Services ex rel. Day v Day, 96 N.Y.2d 149, 726 N.Y.S.2d 54 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 58 Ferres v. City of New Rochelle, 68 N.Y.2d 446, 510 N.Y.S.2d 57 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Fire Dept. of City of Rochester v. City of Rochester, 23 A.D.2d 183, 259 N.Y.S.2d 517 (4th Dep’t), aff’d, 16 N.Y.2d 933, 264 N.Y.S.2d 921 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Heimbach v. Mills, 67 A.D.2d 731, 412 N.Y.S.2d 668 (2d Dep't 1979). . . . . . . . . . . . . . . . . . . . . . . . 52 v00097769-6 TABLE OF AUTHORITIES Holland v Bankson, 290 N.Y. 267 (1943). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 In re Noble, 25 Misc. 49, 53 N.Y.S. 922 (Sup. Ct. Kings Cty. 1898) aff'd, 34 A.D. 55, 54 N.Y.S. 42 (1898).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Jackson v. Nassau County Bd. Of Supervisors, 818 F.Supp. 509 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21 Kelley v. McGee, 57 N.Y.2d 522, 457 N.Y.S.2d 434 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Landmark Colony at Oyster Bay v. Board of Supervisors of County of Nassau, 113 A.D.2d 741, 493 N.Y.S.2d 340 (2d Dep’t 1985). . . . . . . . . . . . . . . . . . . . . . . 45 Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 736 N.Y.S.2d 291 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . 37, 47, 58 Lighthouse Shores, Inc. v Town of Islip, 41 N.Y.2d 7, 390 N.Y.S.2d 827 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Matter of 1 Toms Point Lane Corp. v. Bd. of Assessors, 239 A.D.2d 503, 658 N.Y.S.2d 348 (2d Dep’t 1997), lv. denied, 90 N.Y.2d 809 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Matter of Bowery Sav. Bank v. Bd. of Assessors of the County of Nassau, 80 N.Y.2d 961, 590 N.Y.S.2d 876 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Matter of Fifth Avenue Office Center Co. v. City of Mount Vernon, 89 N.Y.2d 735, 658 N.Y.S.2d 217 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Matter of Gizzo v. Town of Mamaroneck, 36 A.D.3d 162, 824 N.Y.S.2d 366 (2d Dep’t 2006). . . . . . . . . . . . . . . . . . . . . 44-45 vi00097769-6 TABLE OF AUTHORITIES Matter of Main Street In The Village of Sing Sing, 98 N.Y. 454 (1885). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Matter of Newbany Corp. v. Bd. of Assessors, 153 A.D.2d 696, 545 N.Y.S.2d 272 (2d Dep’t 1989). . . . . . . . . . . . . . . . . . . . . . . 27 Matter of Pall Corp. v. Bd. of Assessors of County of Nassau, 41 A.D.3d 722, 838 N.Y.S.2d 174 (2d Dep’t 2007), aff'd, Matter of Steel Los III/Goya Foods, Inc. v. Bd. of Assessors of County of Nassau, 10 N.Y.3d 445, 859 N.Y.S.2d 576 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Matter of Steel Los III/Goya Foods, Inc. v. Bd. of Assessors of County of Nassau, 10 N.Y.3d 445, 859 N.Y.S.2d 576 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Meegan v. Brown, 16 N.Y.3d 395, 924 N.Y.S.2d 1 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 New York Telephone Co. v. Supervisor of Town of North Hempstead, 77 A.D.3d 121, 908 N.Y.S.2d 401 (2d Dep’t 2010), lv. denied, 16 N.Y.3d 711, 923 N.Y.S.2d 415 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Pearsall v. Brower, 120 A.D. 584, 105 N.Y.S. 207 (2d Dep’t 1907). . . . . . . . . . . . . . . . . . . . . . . . . 9, 25 Pearson v. Pearson, 81 A.D.2d 291, 440 N.Y.S.2d 345 (2d Dep’t 1981). . . . . . . . . . . . . . . . . . . . . . . . 54 Queens Park Gardens v. Nassau Cty., 255 A.D. 625, 8 N.Y.S.2d 332 (2d Dep’t 1938), aff'd, 280 N.Y. 789 (1939). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Riley v. County of Broome, 95 N.Y.2d 455, 719 N.Y.S.2d 623 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 vii00097769-6 TABLE OF AUTHORITIES Rozler v. Franger, 61 A.D.2d 46, 401 N.Y.S.2d 623 (4th Dep't 1978).. . . . . . . . . . . . . . . . . . . . . . . . 52 Sonmax, Inc. v. City of New York, 43 N.Y.2d 253, 401 N.Y.S.2d 173 (1977). . . . . . . . . . . . . . . . . . . . . . . 7, 62, 64-67 St. Clair Nation v. City of New York, 14 N.Y.3d 452, 902 N.Y.S.2d 22 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Yatauro v. Mangano, 17 N.Y.3d 420, 931 N.Y.S.2d 36 (2011). . . . . . . . . . . . . . . . . . . . 41, 47, 48, 57-58 New York Constitutions 1894 Constitution (as amended), Article III, §26. . . . . . . . . . . . . . 11, 42, 43, 51, 54 1938 Constitution, Article IX, §2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 1938 Constitution, Article IX, §3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 51 1963 Revisions to New York Constitution, Article IX, §2.. . . . . . . . . . . . . . passim 1963 Revisions to New York Constitution, Article IX, §3.. . . 28-29, 37, 44, 53, 55 State Laws And Statutes N.Y. Laws of 1896, Ch. 908. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 N.Y. Laws of 1898, Ch. 588. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 N.Y. Laws of 1916, Ch. 541. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9, 17 N.Y. Laws of 1924, Ch. 363. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 N.Y. Laws of 1936, Ch. 673. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 N.Y. Laws of 1936, Ch. 879. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 17 N.Y. Laws of 1937, Ch. 618. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17, 48 N.Y. Laws of 1939, Ch. 272. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 N.Y. Laws of 1939, Ch. 700. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 43 N.Y. Laws of 1948, Ch. 98. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 N.Y. Laws of 1948, Ch. 851. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 viii00097769-6 TABLE OF AUTHORITIES CPLR §5601. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 McKinney's Statutes §92(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 McKinney’s Statutes §98(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 61 McKinney’s Statutes §144. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 47, 58 Municipal Home Rule Law §10(ii)(1)(a)(8). . . . . . . . . . . . . . . . . . . . . . . . . . . 64-67 Municipal Home Rule Law §34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Municipal Home Rule Law §35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 49, 56 Municipal Home Rule Law §50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Municipal Home Rule Law §51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Municipal Home Rule Law §53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Municipal Home Rule Law §56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Real Property Tax Law §726(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Real Property Tax Law §900.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Local Law 18-2010 (“The Common Sense Act”). . . . . . . . . . . . . . . . . . . . . . passim Nassau County Administrative Code, Section 6-24.0. . . . . . . . . . . . . . . . . . . 16, 34 Nassau County Administrative Code, Section 6-25.0. . . . . . . . . . . . . . . . . . . 16, 34 Nassau County Administrative Code, Section 6-26.0. . . . . . . . . . . . . . . . 16, 24, 34 Nassau County Charter, Section 103.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 40 Nassau County Charter, Section 104.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Nassau County Charter, Section 150.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 42, 46 Nassau County Charter, Section 151.. . . . . . . . . . . . . . . . . 14, 40, 43, 44, 46-49, 53 Nassau County Charter, Section 154.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Nassau County Charter, Section 155.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Nassau County Charter, Section 156.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Nassau County Charter, Section 161.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Nassau County Charter, Section 162.. . . . . . . . . . . . . . . . . . . . . . . 14, 40, 42, 43, 50 Nassau County Charter, Section 302, 303. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 40 Nassau County Charter, Section 601.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ix00097769-6 TABLE OF AUTHORITIES Nassau County Charter, Section 602.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 40 Nassau County Charter, Sections 606-608. . . . . . . . . . . . . . . . 12, 26, 27, 34, 40-41 Nassau County Charter, Section 609.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17 Nassau County Charter, Section 2201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 41 Texts and Treatises Lincoln, The Constitutional History of the State of New York, Volume IV (Lawyer's Co-Op Pub. 1905). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Krieg and Naylor, Eds., Nassau County: From Rural Hinterland to Suburban Metropolis (Empire State Books 2000).. . . . . . . . . . . . . . . . . . . . . . 9, 14, 15, 19, 20 Poletti, Vol. 11, New York State Constitutional Convention Committee Materials Submitted to Delegates of the 1938 Constitutional Convention, Problems Relating to Home Rule and Local Government, (J.B. Lyon Co. 1938). . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Other No. 99-4, 1999 N.Y. Op.Atty Gen. (Inf.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 100097778-12 PRELIMINARY STATEMENT Appellants Nassau County, its Legislature, and its County Executive (collectively, the “County”) appeal from an Opinion & Order of the Appellate Division, Second Department which erroneously invalidated a local law duly enacted by the County in 2010. The fundamental question presented to the Court is whether the County validly exercised its broad municipal home rule law powers to enact a local law to amend its own Administrative Code for the purpose of repealing a special law which had been enacted at the behest of the County itself in 1948 known as the “County Guaranty.” The County Guaranty – which applied only to Nassau County – obligated the County to pay 100% of the tax refunds resulting from tax certiorari and other proceedings for over-assessed properties in the County, even though the County only received approximately 20% of the tax revenues, with the remaining 80% of tax revenues going to the towns, school districts, and special districts who kept all such revenues without having any corresponding obligation to pay any portion of the tax refunds. As explained below, the sui generis County Guaranty was put in place at the behest of the County in 1948 under circumstances which can only charitably be described as unusual (see pp. 17-25 below), just as the County’s population was 200097778-12 exploding (including massive population increases post-World War II), resulting in an increase in school districts and the student population, eventually leading to an increase in local taxes and tax certiorari burdens which culminated in a historic debt which “brought the County to the brink of bankruptcy” (JR 455), and also led to the state-imposed oversight of the County by the Nassau County Interim Finance Agency (“NIFA”). The crushing debt associated with tax refunds alone (over $1 billion dollars out of the County’s approximate $3 billion total debt burden) brought the County to the widely recognized fiscal crisis that continues today. Accordingly, in 2010, the County enacted Local Law 18-2010, aptly entitled “The Common Sense Act,” to repeal the County Guaranty and amend the Administrative Code to be consistent with state general law (Real Property Tax Law §726(1)), which requires tax refunds to be charged back to the taxing district that actually receives the tax revenues. Indeed, virtually every other County in the State of New York refunds taxes pursuant to RPTL §726(1), except for the County of Nassau. To further underscore the abject fairness of The Common Sense Act, it applies only to prospective tax refunds – i.e., it was specifically designed and enacted so that the more than $1 billion of debt which the County has been forced to shoulder for refunds of tax overpayments under the County Guaranty remains, 300097778-12 and only future tax collections and refunds will be governed by Real Property Tax Law §726(1). Three separate challenges to The Common Sense Act were brought by Respondents, who represent the interests of the towns, school districts, special districts, and two individual taxpayers who seek to perpetuate the unfair and crippling system which brought the County to the brink of bankruptcy at the expense of the County and its taxpayers. Their position is based on an argument that it would be “inequitable” for Nassau County’s school districts to be responsible for their proportionate share of tax refunds, even though virtually every other school district in New York State bears that very burden in accordance with state general law. The Supreme Court, Nassau County correctly rejected these challenges, and upheld the validity of Local Law 18-2010, finding that the County had broad municipal home rule authority to enact a local law (the Common Sense Act) repealing a special law (the County Guaranty) which had been enacted at the behest of the County itself in 1948 under vastly different circumstances than those present today. The Supreme Court aptly noted that the repeal of the antiquated County Guaranty was fully consistent with the State general law (RPTL §726(1)), and that the County possessed broad municipal home rule local powers to enact 400097778-12 local laws which repeal or supersede special laws which do not apply equally to all counties (the County Guaranty indisputably applies only to Nassau County) and further provided that the local law is consistent with State general law (it is similarly undisputed that Local Law 18-2010 is fully consistent with RPTL §726(1)), and the prevailing tax refund system in place in virtually every other County in the State. However, the Appellate Division, Second Department reversed on February 27, 2013 and erroneously declared Local Law 18-2010 invalid because the County purportedly did not have the legislative authority to repeal the County Guaranty because Article IX, §2(c)(ii)(8) of the New York Constitution supposedly limits the County’s authority to do so. As established below, the Opinion & Order should be reversed as a matter of law, because the Appellate Division fundamentally misapplied and misconstrued Article IX of the New York Constitution to erroneously find that it limited the broad home rule authority granted to Nassau County under general state laws enacted in 1936, 1937 and 1939 by the State Legislature, which laws granted Nassau County “full and complete ... powers of local legislation,” with full authority to “chang[e] or supersed[e] any provision of an act of the [state] legislature which provision does not in terms and in effect apply alike to all 500097778-12 counties.” The County Guaranty was an “act of the state legislature” which did not “apply alike to all counties” but only applied to Nassau County. Moreover, numerous express savings clauses in the 1938 N.Y. Constitution, as well as the 1963 revisions thereto, expressly preserved all prior grants of local authority to local governments and thus, the County had “full and complete” authority to repeal the County Guaranty as a matter of law under its broad home rule authority. The Appellate Division’s legal error was compounded by the fact that it erroneously applied the provisions of Article IX, §2(c)(ii)(8) of the N.Y. Constitution as revised in 1963 to declare Local Law 18-2010 invalid, even though the 1963 revisions did not apply to the County as a matter of law. As demonstrated below, the 1963 revisions to Article IX did not even exist at the time of the State’s prior and explicit grant of authority (including the authority to repeal any state law which did not “apply alike to all counties”). Indeed, the express savings clauses in the 1938 Constitution and the 1963 revisions – coupled with the fact that the 1963 revisions (as well as prior amendments discussed below) were intended to expand local municipal home rule law powers – mandate that the Appellate Division’s application of Article IX was clearly erroneous. Moreover, even if the 1963 revisions did apply, they still would not change the legal validity 600097778-12 of Local Law 18-2010 because the 1963 revisions did not limit the County’s authority in any way. For these and other reasons demonstrated below, the Appellate Division employed a fundamentally flawed statutory analysis, and the Order below should be reversed as a matter of law and Local Law 18-2010 declared valid in all respects. JURISDICTIONAL STATEMENT On January 4, 2012 the Supreme Court, Nassau County granted judgment in favor of the County in these three hybrid actions-proceedings which were joined for purposes of decision. (JR5-11) Respondents timely appealed to the Appellate Division. (JR1-4, 12-13, 15-18) On February 27, 2013, the Appellate Division, Second Department reversed and, upon searching the record, granted summary judgment in favor of Respondents. (JRxv-xxii) Notice of Entry of the Opinion & Order was received on February 28, 2013. On March 11, 2013, the County timely filed a notice of appeal as of right pursuant to CPLR §5601 because this appeal directly involves construction of the New York State Constitution (JRxi-xiv). The appeal is from a final judgment entered by the Appellate Division in each of the three proceedings. 700097778-12 QUESTIONS PRESENTED I. Whether the Appellate Division improperly applied the 1963 amendments to Article IX, §2 of the New York Constitution to erroneously find they limited the broad home rule authority granted to Nassau County under general state laws enacted in 1936, 1937 and 1939 by the State Legislature, which laws granted Nassau County "full and complete ... powers of local legislation” with full authority to “chang[e] or supersed[e] any provision of an act of the [state] legislature which provision does not in terms and in effect apply alike to all counties,” even though the 1938 New York Constitution, as well as the 1963 revisions, expressly preserved all prior grants of local authority, including the County’s authority to repeal any state law that did not “apply alike to all counties.” II. Even if the 1963 amendments to the New York Constitution applied (which they do not), whether the Appellate Division misconstrued Article IX, §2(c)(ii)(8) to conclude that it prohibits the County from superseding a special law relating to property tax refunds, when in fact Article IX, §2(c)(ii)(8) expressly authorizes the County to enact a local law that is not inconsistent with state general law. III. Whether this Court’s holding in Sonmax, Inc. v. City of New York, 43 N.Y.2d 253, 401 N.Y.S.2d 173 (1977) is dispositive, compelling the Unless otherwise indicated, all underlining and emphasis of quoted text in this brief is1 added. 800097778-12 conclusion that the local law enacted by the County concerning property tax refunds is proper and validly enacted pursuant to Municipal Home Rule Law §10(ii)(1)(a)(8) and Article IX, §2(c)(ii)(8). STATEMENT OF FACTS Set forth below are the relevant facts, statutes, and legislative history.1 A. Creation of Nassau County And Enactment of The Nassau County Tax Act The County of Nassau (formerly part of Queens County) was created in 1899 after the western portion of Queens became a borough of New York City. N.Y. Laws of 1898, Ch. 588 (creating Nassau County); In re Noble, 25 Misc. 49, 50, 53 N.Y.S. 922, 923 (Sup. Ct. Kings Cty. 1898), aff'd, 34 A.D. 55, 54 N.Y.S. 42 (1898)(noting that Laws of 1898 set off territory of the towns of Oyster Bay, Hempstead and North Hempstead to form new county called Nassau); see also Lincoln, The Constitutional History of the State of New York, Volume IV, p. 446 (Lawyer's Co-Op Pub. 1905). The first Board of Supervisors for Nassau County was elected in 1898 and began serving on January 1, 1899. In 1916, the Nassau County Tax Act was enacted by the Laws of 1916, Ch. 541 (the “Tax Act”). The Tax Act provided for taxes to be assessed by the Town Prior to enactment of the Tax Act, the assessment of taxes was governed by the general2 tax law. See N.Y. Laws of 1896, Ch. 908, p. 795; Pearsall v. Brower, 120 A.D. 584, 585, 105 N.Y.S. 207, 208 (2d Dep’t 1907). 900097778-12 Boards of Assessors for the three towns of Nassau (Hempstead, North Hempstead, and Oyster Bay). The Town Assessors were required to prepare the assessment rolls within their respective towns, including for school districts and special districts and submit them to the County Treasurer, and further provided that if any refunds of taxes to property owners were due, the refund would be paid by the Board of Supervisors and “charged back” by the County Treasurer to the towns, cities, and school districts. See also JR94, 181-183 (confirming tax refunds were charged back to taxing districts under Tax Act). In other words, under the Tax Act, the taxing district that actually received the tax revenues was responsible to pay their portion of any tax refunds arising out of, inter alia, tax certiorari proceedings.2 B. Nassau County’s Successful Efforts to Achieve Autonomy, Create An Alternative Form Of Government, And Rule Its Own Affairs Soon after it was created, Nassau County sought to address problems in its local government caused by its multiple villages and special districts, and seeking to centralize government on a county-wide basis. Krieg and Naylor, Eds., Nassau County: From Rural Hinterlands to Suburban Metropolis, pp. 32-33 (Empire 1000097778-12 Books 2000). “By the 1930's, Nassau not only comprised sixty-five villages and cities but 173 special district governments. . .A survey of Nassau County’s government reported: ‘there are so many local jurisdictions that it was not possible to prepare a map of the county or even of one town showing local unit boundaries.’ According to this investigation, there were within a single tract of 120 acres, twenty-four governmental units exercising authority. . . .In the minds of most public administration experts such extraordinary fragmentation of government was inefficient and resulted in costly, irresponsible government.” Id. To try and address these issues, “a good-government group called the Nassau County Association [lobbied] to correct some of the problems in the pattern of local rule. This group won state legislative authorization for the creation of a commission to propose reforms in Nassau’s framework of government. . .it called for a transfer of authority to an overarching county government.” For the next two decades, Nassau’s leaders attempted to centralize government, leading to the approval of an amendment to the New York State Constitution in 1921 to allow Nassau and Westchester counties to adopt new forms of government. By 1936, the County had come to a consensus on a charter proposal which “created a county executive with a qualified veto over the actions 1100097778-12 of the county board of supervisors. The new charter centralized authority over welfare, health and tax assessments in the county, and authorized a county planning commission to adopt a master plan to guide the county’s development.” Id. at 33-34. As a result of these decade-long efforts, Nassau County became a model for local governance and the first county in the United States to create an elected executive office. Id. C. Enactment of N.Y. Laws of 1936, Chapter 879 As a result of these lobbying efforts, in June 1936, the State Legislature enacted the Laws of 1936, Ch. 879, entitled an "Alternative Form of Government for Certain Counties” pursuant to the home rule provisions of Article III, §26 of the 1894 N.Y. Constitution, as amended (the “County Home Rule Law”). The County Home Rule Law provided an alternative form of government for counties and a model county charter, so that an eligible county could elect an alternative form of government, adopt the form of charter, and more broadly enjoy the power and privileges of home rule. Electing an alternative form of government delegated broad powers of local legislation to an eligible county that other counties in the State would not have. Section 103 of the model form of county charter provided: “In addition to all powers conferred by the preceding section or by any other provision of this act, 1200097778-12 the board of supervisors shall have power to. . .(2) exercise powers of local legislation and administration as provided in section twenty-six of article three of the constitution of the state of New York.” The model form of charter also contained extensive provisions regarding a county’s authority over matters relating to taxes, including authority to “make appropriations and levy taxes” (Section 103(7)), authority to make and administer assessments through its board of assessors (Section 602), authority to account for and estimate taxes collected and uncollected (Section 302), authority to make budget determinations based upon estimated tax receipts (Sections 302-303), authority to “make corrections ... in the assessment roll” and to certify the assessment roll through its board of assessors (Section 607, later renumbered Section 606). Section 2201 further provided: “The board of supervisors may provide by ordinance a plan, not inconsistent with the terms of this act, for the assessment of property for tax purposes, the making of appropriations, the period for which appropriations are made, the levy of taxes, the collection of taxes, the accrual of penalties, the sale of tax liens and the foreclosure thereof with reference to the dates at which each of the steps above set forth shall take place. Until the passage of such an ordinance the provisions of the laws of this state relating to taxation 1300097778-12 applicable to the county in force on the date on which this act becomes effective therein and not inconsistent with this act shall govern.” Thus, under the proposed Charter, a county electing an alternative form of government would have full powers of local legislation, including the authority to pass local laws relating to the assessment, collection, and refunds of taxes. Until such a local law was passed, the provisions of the Nassau County Tax Act remained in effect. D. Further Enhancements to the County Home Rule Law On May 25, 1937, the State Legislature enacted the Laws of 1937, Ch. 618 to add a new Article I-a to the County Home Rule Law, further expanding an eligible county’s powers of local legislation, and adding Sections 150 through 162 to the Charter. The relevant sections are as follows: Section §150: "The County Legislature. . .shall have powers of local legislation under the provisions of section twenty six of article three of the Constitution and shall have power to adopt and amend local laws." Section §151 provided: “In adopting a local law changing or superseding any provision of an act of the State Legislature which provision does not in terms and in effect apply alike to all counties, the County Legislature shall specify the chapter number, year of enactment, title of statute, section, subsection or subdivision, which it is intended to change or supersede, but the failure so to specify shall not affect the validity of such local law. . .” Suffolk County eventually followed suit. Krieg and Naylor, supra at 34.3 1400097778-12 Section §162 provides: "It is the intention of the legislature by this article to provide for the full and complete exercise by the County Legislature of powers of local legislation pursuant to the provisions of section twenty six of article three of the constitution. The powers granted by this article shall be in addition to and not in substitution for all the powers. . .conferred or imposed upon the county by any other provision of this act or of any other law heretofore or hereafter enacted, insofar as the provisions of this article are inconsistent therewith, the provisions of this article shall be controlling. This article may be construed liberally." Thus, the powers granted to a county electing this particular alternative form of government were controlling over “any other law heretofore or hereafter enacted, insofar as the provisions of this article are inconsistent therewith.” A copy of Article I-a to the Charter (Sections 150-162) is in the record at JR815-821. E. Nassau County Elects An Alternative Form of Government And Adopts Its Charter In 1937, Nassau County elected an alternative form of government – the first county in the United States to do so. Krieg and Naylor, supra, at p. 34. On January 1, 1938, the Nassau County Charter became effective (the “Charter”). At that time, only 2 of the 62 counties in New York State elected to adopt new forms of government – Nassau County and Westchester County. As stated in the3 materials provided to the 1938 Delegation to the Constitutional Convention, “[T]he County Home Rule Amendment, considered with its enabling statutes, 1500097778-12 offers home rule only at a price – the adoption of a new form of government made available by the State Legislature. Additional powers of local legislation are the reward for counties willing to modernize their governments. Thus far, only two counties have accepted such home rule.” Poletti, Vol. 11, New York State Constitutional Convention Committee Materials Submitted to Delegates of the 1938 Constitutional Convention, Problems Relating to Home Rule and Local Government, p. 2 (J.B. Lyon Co. 1938). With regard to the assessment of real property taxes, the office of Town Assessor was abolished pursuant to Charter §609, and in its place was substituted a County Board of Assessors, pursuant to Charter §602, changing the manner in which assessments would be performed. Queens Park Gardens v. Nassau Cty., 255 A.D. 625, 626-27, 8 N.Y.S.2d 332, 334 (2d Dep’t 1938), aff'd, 280 N.Y. 789, (1939)(recognizing change in assessment system). F. The State Legislature Enacts the Laws of 1939, Ch. 272, Providing An Administrative Code for Nassau County As summarized in a report sent to Nassau County’s Board of Statutory Consolidation and Revision, a number of recommendations were made to the Board, including recommending the adoption of an Administrative Code in order to consolidate all existing special and local laws in one place. (JR136-141) The A full copy of the Charter and the Administrative Code can be found on the Nassau4 County website at www.nassaucountyny.gov. See e.g. N.Y. Laws of 1936, Ch. 673 (amending Section 122(2) of the 1916 Nassau5 County Tax Act)(“If any reduction or refund be ordered ... the county treasurer shall deduct the amount thereof from any subsequent payment to such district”); N.Y. Laws of 1936, Ch. 879, §2201 (authorizing county to enact its own "ordinance" pertaining to the levy, collection and administration of local taxes); N.Y. Laws of 1939, Ch. 272 (enacting Section 6-26.0 of the 1600097778-12 County engaged in an extensive analysis and compilation of its laws, prepared an index (JR139), and thereafter requested the State Legislature to enact the Administrative Code (JR134, 143-144). On April 12, 1939, the State Legislature enacted the Laws of 1939, Ch. 272, entitled “AN ACT to provide an administrative code for Nassau county in harmony with and supplemental to the county government law of Nassau county.” (See Governor’s Bill Jacket, JR127-158) The Administrative Code contained all the local and special laws needed to implement the provisions of the County Charter. It contained numerous provisions relating to taxes and, as relevant to4 this appeal, provided in Sections 6-24.0, 6-25.0, and 6-26.0 for the Board of Supervisors to, inter alia, refund taxes to property owners as a result of, among other things, overassessments. Consistent with every other county in New York State, and consistent with the 1916 Nassau County Tax Act, the obligation to pay such tax refunds would be “charged back” to the towns, school districts, and special districts that received the benefit of the revenues from such properties.5 Administrative Code). The title “County Board of Assessors” was a misnomer, as it was primarily comprised 6 of Town officials, elected on a Town-wide basis. Charter §601 provided for the Board of Assessors to have five members: two from the most populous town (the Town of Hempstead), one each from Oyster Bay and North Hempstead, and “one to be elected from the county at large.” Thus, even though the office of Town Assessor was abolished by Charter §609, the assessing function was controlled by 4 Town supervisors. This was not changed until 2003, when the Administrative Code was amended to provide that all assessment functions would be performed by the Department of Assessment. 1700097778-12 For convenience, the Laws of 1936, Ch. 879 (creating alternative form of county government and providing a model charter), the Laws of 1937, Ch. 618 (adding new Article I-a to the proposed model charter), and the Laws of 1939, Ch. Ch. 700 (amending model charter to correct references to home rule section of N.Y. Constitution renumbered by the 1938 Constitution) are collectively referred to herein as the “Local Legislation Act,” although they were codified at different times. G. Collection and Refund of Property Taxes From 1938 to 1948 After 1938, and pursuant to the newly-adopted Charter, the County Board of Assessors assessed and collected the taxes. (JR185) Pursuant to the6 Administrative Code, the Board of Supervisors was required to pay the refund and “charge back” the towns and school districts for their portion of the tax refunds. (JR185) However, the Board of Supervisors did not comply with the Administrative Code, and did not charge back the towns and school districts for 1800097778-12 their share of the refunds. Instead, the County Treasurer kept an account on its books of the refunds to be charged back to the towns and school districts which had yet to be repaid. See Governor’s Bill Jacket, March 8, 1948 Letter of Nassau County Deputy Attorney G. Burchard Smith (explaining “The County Treasurer of Nassau County now has on his books an account” consisting of charges and reductions to towns, cities, and school districts emanating from, inter alia, “cancellations of assessments and taxes, and tax roll deficiencies” dating back to before 1939)(JR182, 185). The Board of Supervisors did not charge back the towns and school districts for such refunds, as it was required to do under the Administrative Code, because of an inherent conflict of interest in that the members of the Board of Supervisors obtained significant political benefits in not complying with the law, while the Towns they supervised obtained financial benefits. At that time, the County was governed by a six-member Board of Supervisors, comprised of officials elected by the three Towns and two cities within the County, whose votes on the Board of Supervisors were weighted, depending on which town or city they supervised. Local Legislation Act and Charter, §104. All the members of the Board of Supervisors were elected on a town-wide (or city-wide) basis, not a county-wide basis. In the 1930's and 1940's, the bulk of taxes were town and county taxes (not There were 29 school districts in Nassau County in 1921. Krieg and Naylor, supra, at7 176. There are 56 school districts today. (JR61) As provided in Charter §104(5)(a), the Town of Hempstead had 58 votes, Oyster Bay8 had 22 votes, North Hempstead had 15 votes, Long Beach had 7 votes, and Glen Cove had 6 votes, for a total of 108 votes, requiring a majority of 65 votes to approve a resolution by majority vote. A thorough discussion of Nassau County’s weighted voting system is found in Jackson9 v. Nassau Cty. Bd. of Sup'rs, 818 F. Supp. 509, 535 (E.D.N.Y. 1993) which declared “weighted voting as it is presently utilized by the Nassau County Board of Supervisors is unconstitutional, 1900097778-12 school district taxes), as the County was not yet heavily populated and there were not as many students (or school districts) as there are today.7 The Town of Hempstead's weighted votes constituted more than half the total votes on the board. Because of this unusual system, the Board of8 Supervisors (controlled by Town officials) had an inherent interest in not having their Towns and school districts charged back for tax refunds, because it would save them money, improve the bottom line for the Towns, and make the Town supervisors appear as though they were keeping taxes low for their constituents. Thus, instead of charging back the refunds, the County Treasurer was instructed to keep “books of account,” accumulating the amounts owed by the Towns and school districts on the books. (JR181-182) In doing so, the Board of Supervisors were serving the best interests of their respective Town residents who elected them, at the expense of the County, and indeed were doing so in willful violation of the Administrative Code.9 in that it violates the one person, one vote principle encompassed by the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.” On this issue, former County Executive Ralph Caso acknowledged in the 1970's that: “There are problems under the existing system because the [Town] supervisor tends to see county problems from the point of view of his town only.” Krieg and Naylor, supra, at 114. 2000097778-12 The conflicted members of the Board of Supervisors were soon faced with a potential political crisis – having to raise Town taxes to fund their growing obligations under the Administrative Code, which continued to accumulate on the books of the County Treasurer. It was against this backdrop that the Board of Supervisors, controlled by the Town supervisors and primarily by the Town of Hempstead – all of whom had a collective interest in eliminating their collective obligations to pay these refunds – decided to send a home rule message asking the State Legislature to legalize their illegal conduct and enact a new, special law shifting to the County the burden of paying 100% of the tax refunds due each year, thereby absolving the towns and school districts from any such obligation (the “County Guaranty”). In other words, the request to the Legislature was a direct result of the inherent conflict of interest in the Board of Supervisors – a system later found to be unconstitutional, and ultimately replaced by a County legislature in 1994. See Jackson v. Nassau County Bd. Of Supervisors, 818 F.Supp. 509, 535 We recognize this Court has noted: “[t]he vortex of the legislative process is often the10 intersection of politics and policy,” that “speculation on the ‘political motivation of the Legislature as a judicial construct for statutory analysis . . .would be a slippery and dangerous slope,” and that “a court sitting as a court of law cannot inquire into the motives by which law was produced.” City of New York v. State, 94 N.Y.2d 577, 591, 709 N.Y.2d 122, 135 (2000). However, we do not ask the Court to consider the political underpinnings of the County Guaranty in connection with any statutory construction of the local law at issue on this appeal, but merely to provide context and background of the enactment of the 1948 special law enacting the County Guaranty. 2100097778-12 (1993)(system violated the “one person, one vote principle encompassed by the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.”) Thus, the true motive behind requesting the County Guaranty was for purely selfish political purposes, and not in furtherance of any legitimate government policy. The scheme had the effect of artificially lowering the tax rates of the respective Towns (who would receive all the taxes, including tax overpayments, without having to worry about budgeting for refunds or raising tax rates), while increasing the tax rates of the County due to the County’s obligation to pay 100% of the tax refunds. The Town supervisors were thus able to avoid raising Town taxes and kept in good political graces with their constituents. However, none of these policies or decisions were in the best interests of the County of Nassau. 10 The request to enact the County Guaranty is even more indefensible when it is considered that the County only received a portion of the tax revenues, while the Respondents argued below that the rationale for the County requesting the State11 Legislature to approve the County Guaranty was because the County had taken over the assessing function from the Town supervisors and therefore, decided that if the County was the assessing party, it was only “fair” for the County to pay the refunds. This is nonsensical. Towns are the assessing units in 60 of New York’s 62 counties. The Towns do not pay all the refunds, but charge them back to the appropriate party pursuant to Real Property Tax Law §726(1). Similarly, Tompkins County – the only other County in New York where assessment is a county function (JR105, 211) – does not have a guaranty provision and charges back the towns and school districts. The two sets of Bill Jackets are reproduced in varying degrees of legibility. In citing to12 the record, we cite to the page or pages that are most legible. 2200097778-12 Towns and school districts received the rest. And yet, the conflicted Board of Supervisors collectively determined to force the County bear 100% of the burden of paying tax refunds.11 H. The Board of Supervisors Asks The State Legislature to Enact The County Guaranty In 1948 In February 1948, a home rule message was sent from the Board of Supervisors to the State Legislature, requesting the enactment of a special law which would amend the Administrative Code so as to require, among other things, the County to pay refunds to property owners and eliminate any charge backs to the towns, school districts, and special districts as a result of any deficiencies (the “County Guaranty”)(See Governor’s Bill Jacket at JR612-636; also reproduced at JR175-191).12 In response to this home rule message, the Governor’s office asked the Nassau County Attorney’s office for its recommendation on the proposed bill. The 2300097778-12 Deputy County Attorney sent a letter dated March 8, 1948, recommending approval and vaguely claiming: “The changes in procedure, above referred to, will avoid administrative details and the amendment is deemed to be in the best interests of the County of Nassau.” (JR183) This recommendation did not, and could not, explain how an amendment to the Administrative Code shifting the obligation to pay 100% of the tax refunds to the County, when it only received a portion of the tax revenues, was a mere “administrative detail” and was “in the best interests of Nassau County.” Recognizing the importance of local governance, and that the County Guaranty was a matter of acute local impact, the State Legislature accommodated the request and enacted N.Y. Laws of 1948, Ch. 851, to amend provisions of the Administrative Code to enact the County Guaranty. Demonstrating the State’s recognition of the importance of local control over such matters, in a letter dated April 6, 1948 from Mortimer M. Kassell, Deputy Commissioner and Counsel to the State Department of Taxation and Finance, he wrote, inter alia, “I see no reason why this bill should not receive executive approval if it is in accord with the wishes of the local officials concerned.” (JR636) Accordingly, Section 6-26.0 was amended to add new subsection (b)(3)(c) which provides: Apparently the Board of Supervisors also improperly relied on the County Guaranty,13 enacted in 1948, to wipe out the existing debt of the Towns and school districts on the books for the previous decade, even though the County Guaranty was not retroactive. “[R]etroactive operation of legislation “is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it.” St. Clair Nation v. City of New York, 14 N.Y.3d 452, 456-57, 902 N.Y.S.2d 22, 25 (2010). It is unknown whether anyone challenged the Board of Supervisors’ misuse of the County Guaranty for this purpose. 2400097778-12 “Notwithstanding any provisions of this chapter, or any other general or special law to the contrary, any deficiency existing or hereafter existing from a decrease in an assessment or tax. . . or by reason of exemption or reductions of assessments shall be a county charge.” Accordingly, the County Guaranty went into effect, and thereafter, the County was responsible to pay 100% of the tax refunds each year. At this time13 in 1948, the population of Nassau County was four times less than it is today, there were far less students and school districts, and the amount of tax certiorari proceedings was relatively low compared to what they are today. Thus, the certiorari burden on the County was not remotely near what it is today. Indeed, in a letter written by the Deputy County Attorney to the State Legislature, he represented: “The number of certificates of error from the Board of Assessors is diminishing.” (JR183) I. The Board of Supervisors Also Asks The State Legislature To Amend Section 607 of the Charter Separately, and also in 1948, the Board of Supervisors sought to amend 2500097778-12 Section 607 of the County Charter (now renumbered Section 606). That section, entitled “Correction of roll; extension of taxes” concerned the preparation and certification of the assessment rolls by the County Assessor. The proposed change provided that any credits arising from the extension of taxes would be a credit to the county, while any deficiencies arising “from the extension of taxes shall be a county charge.” (JR594-610) Extending taxes is a term of art and is a ministerial process involving application of the tax rate to assessed value and entry of the resulting tax on the assessment roll. See Charter §606(a); RPTL §900; JR 607; Pearsall v. Brower, 120 A.D. 584, 585-86, 105 N.Y.S. 207, 208 (2d Dep’t 1907) (describing ministerial process of extending taxes in Nassau County). In the pre-computer age, rounded tax rates were sometimes used to make computation easier, resulting in minor discrepancies between tax levies and collections. (JR607) As stated in the materials contained in the Governor’s Bill Jacket, “In the fixing of these rates it has been customary in Nassau County, as is general throughout the state, to fix a rate that is easy to extend. For example, a $10 per thousand rate is much easier to extend than a $9.99 rate. In some cases the rates used are slightly less than a rate which would raise the correct amount. This practice creates in one instance an excess and in the other a deficiency.” (JR607). See also New York Telephone Co. v. Supervisor of Town of North In their papers below, Respondents based many of their arguments on the false premise14 that the County Guaranty was embodied in Charter §607, in addition to the Administrative Code. To the contrary, not only did Charter §607 have absolutely nothing to do with tax refunds, but this Court, as well as the Appellate Division, has recognized the County Guaranty is contained exclusively in Administrative Code §6-26.0(b)(3)(c). See Matter of Steel Los III/Goya Foods, Inc. v. Bd. of Assessors of County of Nassau, 10 N.Y.3d 445, 451-52, 859 N.Y.S.2d 576, 578 (2008); Matter of Bowery Sav. Bank v. Bd. of Assessors of the County of Nassau, 80 N.Y.2d 961, 964, 590 N.Y.S.2d 876, 878 (1992); New York Tel. Co. v. Supervisor of Town of N. Hempstead, supra at 77 A.D.3d 122, 125-26; Matter of Pall Corp. v. Bd. of Assessors of County of Nassau, 41 A.D.3d 722, 723-24, 838 N.Y.S.2d 174, 175-176 (2d Dep’t 2007), aff'd, Matter of Steel Los III/Goya, supra; Bd. of Educ. of Glen Cove City School Dist. v. Nassau County, 33 A.D.3d 576, 822 N.Y.S.2d 143 (2d Dep’t 2006), lv. denied, 8 N.Y.3d 802 (2007); Matter of 1 Toms Point Lane Corp. v. Bd. of Assessors, 239 A.D.2d 503, 503-04, 658 N.Y.S.2d 348, 349 (2d Dep’t 1997), lv. denied, 90 N.Y.2d 809 (1997); Matter of Newbany Corp. v. Bd. of Assessors, 153 A.D.2d 696, 697, 545 N.Y.S.2d 272 , 273 (2d Dep’t 1989). Not a single one of these cases ever identified Charter §607 (now Charter §606) as a source of the Guaranty. 2600097778-12 Hempstead, 77 A.D.3d 121, 908 N.Y.S.2d 401 (2d Dep’t 2010), lv. denied, 16 N.Y.3d 711, 923 N.Y.S.2d 415 (2011)(recognizing amendment “was meant to cover discrepancies between . . . budgets and . . . taxes collected . . . due to computation rounding errors.”)(JR87) Accordingly, the State Legislature enacted14 Laws of 1948, Ch. 8 to amend Charter §607. J. The Real Property Tax Law Is Enacted In 1958 In 1958, the Real Property Tax Law was enacted. Section 726(1) of the RPTL, (formerly Section 296 of the Tax Law), required all taxing authorities to charge back the amount of the refund attributable to the appropriate taxing district. Section 726(1)(a) provided that if a county was the assessing authority and paid the refund, then “So much of any tax or other levy, including interest thereon, as 2700097778-12 shall be refunded which was imposed for city, town, village or special district purposes, shall be charged to such city, town, village or special district. So much of the amount of any tax or other levy, including interest thereon, as shall be refunded which was imposed for other than city, town, village or special district purposes, shall be a general county charge.” Section 726(1)(b) contains a similar provision where towns, cities, or villages are the assessing authority. Thus, in virtually every other county in the State of New York, the taxing authorities bear their proportionate share of the tax refund obligation. K. The 1963 Amendments to the New York Constitution In 1963, the New York Constitution was amended to, among other things, greatly expand the home rule provisions contained in Article IX, “in addition to” the home rule powers already granted to local governments by any other law. The prior version of Article IX, §2 in the 1938 N.Y. Constitution contained a provision allowing the State Legislature to “provide by law alternative forms of government for counties,” conferring on counties local legislative authority. New Article IX, Section 2(c) expanded these powers, as follows: “(c) In addition to powers granted in the statute of local governments or any other law, (i) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to its property, affairs or government and, (ii) every local government shall have power to 2800097778-12 adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government, except to the extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government: . . .(8) The levy, collection and administration of local taxes authorized by the legislature and of assessments for local improvements, consistent with laws enacted by the legislature.” Article IX, §3(b), a savings clause, expressly reaffirmed and confirmed that the 1963 amendments did not adversely affect any prior existing grants of power or authority: “§3(b) The provisions of this article shall not affect any existing valid provisions of acts of the legislature or of local legislation and such provisions shall continue in force until repealed, amended, modified or superseded in accordance with the provisions of this constitution.” This savings clause bolstered the language of Article IX, §2(c) which stated the new amendments were “in addition to powers granted in. . .any other law.” L. Home Rule Laws Are Further Expanded In 1963, Article 4 of the Municipal Home Rule Law was enacted to further expand and implement the 1963 revisions to the N.Y. Constitution. Among other things, it contained numerous savings clauses to ensure that powers already granted to local governments were not being reduced, removed, or altered. See 2900097778-12 Municipal Home Rule Law, §§10, 35, 50, 51, 53, and 56. M. Pursuant To Its Broad Grant Of Authority, the County Enacts Numerous Local Laws Amending Its Administrative Code After electing an alternative form of government, the County exercised its broad powers of local legislation, including amending its Charter on multiple occasions, and amending its Administrative Code by enacting local laws on numerous occasions, including amendments to Chapter VI governing tax assessments. See, e.g., Nassau County Administrative Code §§6-2.2, 6-2.3, 6-7.0, 6-19.0, 6-20.0, 6-20.1, 6-20.2, 6-20.3, 6-21.0, 6-22.0, and 6-30. N. The County’s Increasing Burden and Financial Crisis Approximately 80% of real property tax revenues in Nassau County do not go to the County but to other jurisdictions within the County, primarily to school districts. (JR688; see also JR62, 121). As stated in an affidavit of Charles Berman, the Receiver of Taxes of Respondent Town of North Hempstead (JR684-690), as of 2009, approximately 69% of taxes collected went to school districts, 12% went to the Town, and 19% went to the County (JR688; see also JR61-62 providing 2007 statistical data, JR65). Thus, under the County Guaranty, some 80% of the tax certiorari refunds paid by the County represented monies it never received, but instead were received and retained by the Towns and school districts. Statistics relating to Nassau County may be found on its website.15 3000097778-12 As the years passed and the population of Nassau County exploded after World War II (from 303,000 residents in 1930 to 1.4 million in 1970), the15 number of students and school districts increased, the number of tax certiorari proceedings increased, the cost to the County of paying the County Guaranty also increased and soon reached an astronomical level, reaching upwards of $80 million dollars per year in annual tax refund obligations. (JR44, 56, 61, 450) By 1990, the number of tax certiorari proceedings represented close to 40% of the Supreme Court’s trial docket: “At the present time, the Supreme Court of Nassau County has approximately 10,000 notes of issue filed and awaiting disposition for all types of contested actions. Of this number, 3,587 are tax certiorari proceedings, close to 40 percent of this Court’s entire ready trial calendar. The last annual report of the Nassau County Department of Assessment. . .recites that for the 1988-1989 County assessment roll published August 1, 1988, there were 9,204 writs of certiorari filed and, as of January 1, 1989, there were 66,200 such writs pending for filing in Supreme Court. This volume, even to the initiated, is nothing short of staggering. By comparison, in New York City, Suffolk County and Westchester County combined, where the population and land area are many times that of Nassau County, the number of tax certiorari proceedings pending in 1989 was less than one quarter of that here.” (JR332-333) 3100097778-12 By 2002, the County’s tax refund liability accounted for over $1.1 billion of some $3 billion in outstanding debt. (JR44, 56, 121, 399) In the words of a study of the assessment system, this liability “brought the County to the brink of bankruptcy.” (JR455) The cost of funding the County Guaranty significantly contributed to the County’s current position of being subject to the supervision of a state-imposed Nassau County Interim Finance Authority. (JR44, 384-393, 394- 428) A report issued by the Nassau County Assessor in 2009 noted that for the years 1993-2003, tax certiorari refunds had cost the County over $826 million dollars, and that “six years after the completion of the historic 2003 revaluation, the assessment system in Nassau County is still overwhelmed by one of the highest levels of appeals in the entire country.”(JR44-45, 452, 455,457, 474) As stated by the County Comptroller in 2002: “Nassau County has more than $2.8 billion in debt outstanding, the highest county per capita debt level in New York State. More than one-third of that amount represents monies borrowed to pay refunds for over-assessed real estate. Because the County portion of real estate taxes is less than 25% of the more than $1 billion in bonded debt. . .less than $250 million represents refunds on taxes actually received by the county. The balance of the taxes upon which these refunds are based went primarily to school districts, with a small portion going to Nassau’s towns and the City of Long Beach. This system has wreaked financial havoc on the county. 3200097778-12 Nassau County’s arcane real estate tax laws must be put on the same footing as other New York counties . . .Paying out more than $100 million a year in tax refund claims and interest undermined Nassau County’s finances. Ending the county’s guarantee to refund monies it never received, and having the public entities that originally collected the taxes pay the refunds, is equitable and essential.” (JR121) Thus, the County Guaranty was an anomaly, at odds with the general law applicable to every other county in New York State, imposed a wildly disproportionate financial burden on the County, and was contrary to Real Property Tax Law §726(1) which applies to all other counties, towns, cities, and villages in the State of New York and provides that tax refunds ordered in tax certiorari proceedings are charged back to the taxing district that received the overpayments. O. The County Adopts Local Law 18-2010 Amending Its Administrative Code Entitled “The Common Sense Act” To Supersede and Repeal The County Guaranty In 2010, the County enacted Local Law 18-2010, aptly named “The Common Sense Act,” which amended sections of the Administrative Code so as to, inter alia, remove the County Guaranty, thereby aligning itself with the general law of the State of New York, as embodied in the Real Property Tax Law, which provisions were applicable to every county of the state (JR56-59). In enacting The 3300097778-12 Common Sense Act, the County Legislature expressed its legislative intent: “The County Legislature. . .hereby recognizes that. . . [the County Guaranty has] forced the County to pay the costs of refunds, cancellations or credits of taxes (or other levies or assessments), for tax revenue received by the towns, special districts and all but one of the school districts in the County. Nassau County is the only county in New York State that is burdened by this unconscionable guarantee. The County Legislature finds that this practice has cost the taxpayers of Nassau County an extra $80 million dollars annually and over $1 billion dollars since its inception. . .The County further finds that equity and fairness require that towns, special districts and school districts should reimburse the County for these refunds, cancellations or credits of taxes paid by the County.” (JR56-57) Among other things, The Common Sense Act repealed Sections 6-24.0 through 6-26.0 of the Code, and enacted a new Section 6-24.0 which reads as follows: “The County shall act in accordance with the provisions of the Real Property Tax Law with respect to the correction of assessment rolls and tax rolls.” (JR57) The law was approved by the County Executive on November 3, 2010. (JR59) Along with repealing the County Guaranty and related provisions of the Administrative Code, The Common Sense Act also repealed the anachronistic rounding provisions of Charter §606 because they no longer served any purpose. (JR58-59) 3400097778-12 Finally, Local Law 18-2010 provided that it would take effect “immediately, except that it shall apply to the assessment rolls that are finalized in April 2012 and thereafter.” Thus, the County did not eliminate its obligation to pay the tax refunds that already existed, and did not seek to shift its already existing tax burden to the Towns and school districts retroactively, but simply eliminated its obligation to pay tax refunds prospectively, commencing with the 2012 assessment rolls, in order to improve the County’s financial health prospectively. P. Respondents Commence Three Hybrid Actions/Proceedings, Challenging The Enactment of the Common Sense Act The Common Sense Act was challenged in three proceedings. The first proceeding was brought by 41 school districts, one school district superintendent, and one Board of Education president. (JR20-54, 534-569) The second proceeding was brought by two taxpayers (JR571-591), and the third proceeding was brought by the Town of North Hempstead and 19 of its special districts (JR656-681). The County answered and objected to the first and third proceedings (JR822-835, 836-850). The County moved to dismiss the second proceeding for lack of standing (JR755-760), and Respondents in that action cross-moved for summary judgment (JR781-783). The separate challenges were ultimately joined for discovery and decided together (JR788-795). The Common Sense Act was 3500097778-12 challenged on various grounds including, inter alia, that the County lacked the legislative authority to repeal the County Guaranty. Q. The January 4, 2012 Order of the Supreme Court, Nassau County, Correctly Dismissed the Petitions On January 4, 2012 the Supreme Court, Nassau County held that the County possessed the authority to enact a local law amending its own Administrative Code so as to remove the County Guaranty. (JR5-11) The Court correctly found that Nassau County was granted extremely broad powers of local legislation by the State, and these powers clearly authorized the County to enact a local law superseding a special law, removing the County Guaranty from the Administrative Code (JR5-11). Accordingly, the Court denied the petitions, and denied as academic the County’s motion to dismiss the second proceeding for lack of standing. (JR11) R. The Appellate Division Erroneously Reverses Respondents appealed to the Appellate Division. (JR1-4, 12-13, 15-18) In its Opinion & Order reversing the lower court, the Appellate Division applied skewed constitutional analysis, misconstrued Article IX of the Constitution, relied on inapplicable case law, failed to recognize the broad local legislative authority uniquely accorded to Nassau County, and failed to give meaning to the numerous 3600097778-12 savings clauses in the Constitution, the Municipal Home Rule Law, and the Charter, holding instead that the broad rights given to the County by the Local Legislation Act and its Charter, including the power to “chang[e] or supersed[e] any provision of an act of the State Legislature which provision does not in terms and in effect apply alike to all counties,” did not permit the County to repeal the County Guaranty, even though the County Guaranty only applied to Nassau County and not to all counties alike. Baldwin Union Free School Dist. v. County of Nassau, 105 A.D.3d 113, 962 N.Y.S.2d 229 (2d Dep’t 2013). Specifically, the Appellate Division improperly applied and then wrongfully construed Article IX, §2(c)(ii)(8) of the N.Y. Constitution to find that the County could only enact a local law that was consistent with both general and special laws (JRxx, xxi), and thus reasoned that because the 1948 County Guaranty was a special law, the County had no power to repeal it. This conclusion was erroneous because (i) the 1963 amendments to the N.Y. Constitution, enacting Article IX, §2(c)(ii)(8) were not even in existence at the time the County was granted its broad powers of local legislation in 1938 pursuant to the Local Legislation Act and thus, could not apply to the County as a matter of law; (ii) the savings clauses contained in the home rule provisions of Article IX, §3 of the Constitution, the Local Legislation Act, and the Municipal Home Rule Law fully preserved and 3700097778-12 protected the County’s broad powers of local legislation; and (iii) even if the 1963 amendments did apply, the Court completely misconstrued Article IX, §2(c)(ii)(8) in a manner that leads to an unintended result which, among other things, renders it devoid of meaning, in violation of applicable rules of statutory construction. See Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104, 736 N.Y.S.2d 291, 297 (2001)(“Statutes will not be construed as to render them ineffective.”); McKinneys Statutes §144. This appeal ensued. STANDARD OF REVIEW It is well settled that a duly enacted local law “is clothed with the presumption of constitutionality that applies to State legislative enactments.. .This is especially pertinent and cogent in the area of taxation where special deference is given to legislative policy choices. . .Defeating this presumption places a heavy burden, at the threshold, on the party challenging the local law. . .to prove inconsistency with the State Constitution or general laws of the State.” 41 Kew Gardens Road Assoc. v. Tyburski, 70 N.Y.2d 325, 333, 520 N.Y.S.2d 544, 548 (1987)(internal citations omitted); Lighthouse Shores, Inc. v Town of Islip, 41 N.Y.2d 7, 11-12, 390 N.Y.S.2d 827, 830 (1976)(“The exceedingly strong presumption of constitutionality applies not only to enactments of the Legislature but to ordinances of municipalities as well.”) 3800097778-12 ARGUMENT POINT I NASSAU COUNTY POSSESSES THE AUTHORITY AND POWER UNDER THE LOCAL LEGISLATION ACT AND ITS CHARTER TO CHANGE OR SUPERSEDE THE SPECIAL LAW CREATING THE COUNTY GUARANTY, WHICH SPECIAL LAW DOES NOT APPLY “ALIKE TO ALL COUNTIES” BUT ONLY APPLIES TO THE COUNTY OF NASSAU The ruling of the Appellate Division – that the County had no authority to enact a local law (The Common Sense Act) that repealed a special law pertaining only to the County of Nassau (the 1948 County Guaranty), and that the County could only enact a local law that was consistent with both general and special laws – is patently erroneous. The holding is directly contrary to the text of the Constitution, the case law interpreting it, the Local Legislation Act which conferred broad powers of local legislation to Nassau County, and the Nassau County Charter. It also ignores the numerous savings clauses preserving all prior grants of “full and complete” local legislative authority to the County, and completely misconstrued and misapplied Article IX, §2 of the N.Y. Constitution. As a result of the Local Legislation Act enacted in 1936, 1937, and 1939, and the adoption of the Nassau County Charter, Nassau County received unique and extremely broad powers of local legislation, including powers to enact local 3900097778-12 laws pertaining to property taxes, and further received the express authority to “chang[e] or supersed[e] any provision of an act of the [State] legislature which provision does not in terms and in effect apply alike to all counties.” Local Legislation Act and County Charter, §§151, 162. Thus, the County had the absolute right to repeal or supersede the County Guaranty which did not “in terms and in effect apply alike to all counties.” The Local Legislation Act and Charter comprehensively identified the rights, powers, and authority of the county government, and specified that the County’s governing body “shall have the power to. . .(2) exercise the powers of local legislation and administration. . .(5) adopt, amend and repeal ordinances for the purpose of making effective any of the provisions of this act and to carry out all powers conferred on the county, and (6) make appropriations, levy taxes and incur indebtedness.” Local Legislation Act and Charter, §103. Indeed, the Local Legislation Act contained extensive provisions regarding the County’s authority over matters relating to taxes, including authority to “make appropriations and levy taxes” (Section 103(7)), authority to make and administer assessments through its board of assessors (Section 602), authority to account for and estimate taxes collected and uncollected (Section 302), authority to make budget determinations based upon estimated tax receipts (Sections 302-303), In 1994, the Board of Supervisors was replaced by the county legislature, which took its16 place and legislative authority. Yatauro v. Mangano, 17 N.Y.3d 420, 931 N.Y.S.2d 36 (2011). 4000097778-12 authority to “make corrections ... in the assessment roll” and to certify the assessment roll through its board of assessors (Section 607, later renumbered Section 606), and provision for the “[u]se of county assessment roll by village or city” (Section 608, later renumbered Section 607). Moreover, Section 2201 provides: § 2201. Taxation. The Board of Supervisors may16 provide by ordinance a plan, not inconsistent with the terms of this act, for the assessment of property for tax purposes, the making of appropriations, the period for which appropriations are made, the levy of taxes, the collection of taxes, the accrual of penalties, the sale of tax liens and the foreclosure thereof with reference to the dates at which each of the steps above set forth shall take place. Until the passage of such an ordinance, the provisions of the laws of this state relating to taxation applicable to the county in force on the date on which this act becomes effective therein and not inconsistent with this act shall govern.” To this day, these provisions remain in the Nassau County Charter, as delegated by the State Legislature in the 1930's. Accordingly, the County was delegated ample authority over the entire process of levying, collecting, and administering property taxes from start to finish, including tax refunds and who should be obligated to pay them. 4100097778-12 This ample authority was subsequently enlarged in 1937, when the State legislature amended the Charter to confer on eligible counties the broadest authority permitted under the New York Constitution. This 1937 legislation added a new Article I-a which bestowed on counties adopting it “full and complete ... powers of local legislation.” Local Legislative Act, §162; see also Local Legislation Act, §150 (invoking authority under Article III, §26 to grant Nassau County full “powers of local legislation,” including unrestricted “power to adopt and amend local laws”). The 1937 legislation further provided that any law enacted in accordance with that Article I-a must be recognized as law by the courts: “the courts shall take judicial notice of all local laws adopted pursuant to this article.” Local Legislation Act, §161. In addition, the “Legislative Intent” section made clear that the State legislature intended to bestow on a county adopting such form of alternative government the broadest authority possible. That section could not be clearer: § 162. Legislative intent. It is the intention of the legislature by this article to provide for the full and complete exercise by the board of supervisors of powers of local legislation pursuant to the provisions of section Section 162 was amended in 1939 to change all references to Article III, §26 to Article17 IX, §2 due to an intervening 1938 amendment and renumbering of the Constitution, which moved the County home rule provisions from Article III to Article IX. N.Y. Laws of 1939, Ch. 700. 4200097778-12 two of article nine of the constitution. The powers17 granted by this article shall be in addition to and not in substitution for all the powers, rights, privileges and functions conferred or imposed upon the county by any other provision of this act or of any other law heretofore or hereafter enacted. Insofar as the provisions of this article are inconsistent therewith, the provisions of this article shall be controlling. This article shall be construed liberally. Thus, in addition to the powers conferred in 1936 by Article I through XXVI of the County Charter (which already included broad powers of local legislation, the power over every aspect of property taxes, and the power to adopt, amend and repeal ordinances), the new Article I-a granted an even broader –in fact “full and complete”– conferral of local authority and was plainly intended to be the source of law-making authority for the County, and predominant in the case of any conflict. Section 151 addressed the County’s authority to “chang[e] or supersed[e]” state acts and confirmed that the County has the “power” and authority to do so concerning any state law which “does not in terms and in effect apply alike to all counties,” i.e. special laws: A special law is “[a] law which in terms and in effect applies to one or more, but not18 all, counties.” N.Y. Constitution, Article IX, §3. 4300097778-12 § 151. Effect of local law on acts of legislature. 1. In adopting a local law changing or superseding any provision of an act of the legislature which provision does not in terms and in effect apply alike to all counties, the board of supervisors shall specify the chapter number, year of enactment, title of statute, section, sub-section or subdivision, which it is intended to change or supersede, but the failure so to specify shall not affect the validity of such local law. Such a superseding local law may, in like manner, contain the text of such statute, section, subsection or subdivision and may indicate the changes to be effected in its application to such county by inclosing in brackets the matter to be eliminated therefrom and italicizing or underscoring new matter to be included therein. 2. No local law shall supersede any provision of an act of the legislature relating to counties which provision in terms and in effect applies alike to all counties.” Thus, Section 151 gave the County the same authority to legislate as that granted to towns, villages, and formerly cities, and provided that the County could not enact a local law that superseded a general law (a “provision in terms and in effect applies alike to all counties”), but could enact a local law superseding a special law (a provision that “does not in terms and in effect apply alike to all counties.”) Indeed, this is fully consistent with case law relating to the grant of18 such authority to local governments which holds “there is no. . .requirement that a local law be consistent with a special law enacted by the Legislature” and “[a] ‘special law’ may thus be superseded by a. . .local law.” Matter of Gizzo v. Town 4400097778-12 of Mamaroneck, 36 A.D.3d 162, 165, 824 N.Y.S.2d 366, 369 (2d Dep’t 2006) (citing Landmark Colony at Oyster Bay v. Board of Supervisors of County of Nassau, 113 A.D.2d 741, 743, 493 N.Y.S.2d 340, 342 (2d Dep’t 1985); Holland v Bankson, 290 N.Y. 267, 271 (1943)(local law superseding special law declared valid and controlling). In sum, the Local Legislation Act granted “powers of local legislation” (and declared this local power to be “full and complete”), and specifically provided that a local law can change or supersede acts of the State legislature so long as the changed or superseded state act “does not in terms and in effect apply alike to all counties.” This power to legislate is limited only by Article IX, §2 (as it existed in 1939, and preserved by the multiple savings clauses), Charter §154, which prohibits the County from superseding state legislation in various areas, including debt limitation and bond issuance, and Charter §§155 and 156 which require a mandatory or permissive referendum in certain instances. The Common Sense Act is consistent with Article IX, §2 as it existed in 1939, does not fall into any of the areas that are prohibited by Charter §154, and is not subject to mandatory or permissive referendum requirements of Charter §§155 and 156. Nevertheless, the Appellate Division erroneously found that neither the Local Legislation Act nor the Nassau County Charter authorized the County to 4500097778-12 amend its Administrative Code because, among other things, Section 150 only gave the County those powers enumerated in Article IX, §2 of the New York State Constitution, and that Article IX, §2(c)(ii)(8) of the Constitution purportedly prohibited the County from enacting “local laws relating to the levy, collection, and administration of local taxes that are inconsistent with State laws. . .both general and special.” (JRxx-xxi) As established in Point II infra, this was reversible error because, among other things, Article IX, §2(c)(ii)(8) – enacted for the first time in 1963 – could not have applied to the County because it did not exist at the time the County was granted broad powers of local legislation, and due to the multiple savings and conflict clauses that preserved all prior grants of power given to the County in 1936, 1937, and 1939. As established in Point III infra, this was also error because the Appellate Division’s interpretation of Article IX was completely wrong and in violation of fundamental rules of statutory interpretation. In further finding that the County had no authority to supersede or repeal the County Guaranty, the Appellate Division found that Section 151 – which recognizes the County’s authority to change or supersede state laws that “do not apply alike to all counties” – was merely “procedural” in nature, and therefore determined it was not a source of authority to repeal the County Guaranty. (JR xx- 4600097778-12 xxi). Such a holding is completely at odds with the plain text of the enactment and violative of fundamental rules of statutory construction. Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104, 736 N.Y.S.2d 291, 297 (2001)(“the starting point in any analysis must be the plain meaning of the statutory language”). Indeed, the Appellate Division’s interpretation renders Section 151 completely meaningless. A finding that Section 151 supplies a mere “procedure” to supersede state acts, but does not give the County authority to actually implement that procedure, would lead to an unintended result and is violative of well settled rules of statutory construction which require the Court to “harmonize the various provisions of related statutes and ... construe them in a way that renders them internally compatible.” Yatauro v. Mangano, 17 N.Y.3d 420, 426-27, 931 N.Y.S.2d 36, 39 (2011)(internal citations omitted); Dutchess County Dept. of Social Services ex rel. Day v Day, 96 N.Y.2d 149, 153, 726 N.Y.S.2d 54, 57 (2001)(“Courts must ‘harmonize the various provisions of related statutes and construe them in a way that renders them internally compatible.’”) “[M]eaning and effect should be given to every word of a statute [or constitutional provision].” Leader v. Maroney, Ponzini & Spencer, supra. “Statutes will not be construed as to render them ineffective.” McKinneys Statutes §144. Indeed, the language used and grants of local authority contained in Section 151 of the19 Local Legislation Act, are similar to (but actually broader than) the supersession law which was formerly contained in a certain City Home Rule Law/Act upon which the Local Legislation Act was partially modeled. See Laws of 1924, Ch. 363, §12 (City Home Rule Law); Governor’s Bill Jacket to Local Legislation Act, Laws of 1937, Ch. 618, p. 37, Memo. of Frank C. Moore and M. P. Catherwood (in drafting Local Legislation Act “We have [] used the City Home Rule Act and the Fearon law as our pattern.”) 4700097778-12 Indeed, if Section 151 was merely describing a “process” without conferring authority to engage in that process, the State legislature would never have specified that this process could be invoked in the first instance to change or supersede legislative acts which “do[] not in terms and in effect apply alike to all counties.” The legislature would also have never used the language it used, including “Effect of local law on acts of legislature,” “In adopting a local law changing or superseding any provision of an act of the legislature,” “shall not affect the validity of such local law,” and “Such a superseding local law” if it were not conferring such authority to the County. 19 Confirming that Section 151 is not merely “procedural” is that it further expressly provides that a failure to comply with its procedural aspects “shall not affect the validity of such local law,” thus further establishing that the language of Section 151 is both substantive, as well as procedural. Because the Appellate Division failed to construe and harmonize these provisions, and failed to construe them in a way that renders them internally compatible, (Yatauro v. Mangano, 4800097778-12 supra), the Appellate Division’s interpretation of Section 151 was erroneous as a matter of law. The State Legislature’s conferral of “full and complete” “powers of local legislation” in the Local Legislation Act was as extraordinary as it was explicit, and we can find no other local government law to ever have been so broadly worded. Contrast Municipal Home Rule Law §35(1)(County Charter Law, containing significantly more circumscribed legislative intent). The Legislature’s definition of the County’s authority and its statement of intent, was not some sort of meaningless boilerplate, but was an extraordinary and explicit significant grant of local power. See Meegan v. Brown, 16 N.Y.3d 395, 403, 924 N.Y.S.2d 1, 4 (2011)(“The legislative intent is the great and controlling principle.”)(quoting Ferres v. City of New Rochelle, 68 N.Y.2d 446, 451, 510 N.Y.S.2d 57, 60 (1986)); Riley v. County of Broome, 95 N.Y.2d 455, 463, 719 N.Y.S.2d 623, 627 (2000) (“‘The primary consideration of courts in interpreting a statute is to ascertain and give effect to the intention of the legislature.’”)(quoting McKinney's Statutes §92(a)). Accordingly, with full and complete authority to amend its own Administrative Code, to enact local laws and exercise the power of local legislation over property taxes, and to change or supercede state legislative acts To the extent the Order below can be read as holding that when it comes to taxes the20 entire subject area is preempted by state law, such an assertion is patently erroneous and overlooks that in matters concerning local taxes, especially property taxes, the State has explicitly delegated to counties and other local governments matters of assessment, collection, and especially administration, just as it did from the very beginning to Nassau County. 41 Kew Gardens Road Associates v. Tyburski, 70 N.Y.2d 325, 331, 520 N.Y.S.2d 544, 547 (1987) (“While the power to tax is vested solely in the State Legislature. . .the Legislature has delegated to its municipal subdivisions the authority for them to assess and collect their own authorized taxes.”) 4900097778-12 pertaining only to Nassau County to make them consistent with the State’s general law, the County had clear authority to enact The Common Sense Act. See Fire Dept. of City of Rochester v. City of Rochester, 23 A.D.2d 183, 187, 259 N.Y.S.2d 517, 522 (4th Dep’t), aff’d, 16 N.Y.2d 933, 264 N.Y.S.2d 921 (1965)(local law superceding special law pertaining to who was entitled to obtain tax funds was proper exercise of local law authority). Accordingly, the Order below should be reversed as a matter of law.20 POINT II THE APPELLATE DIVISION’S APPLICATION OF THE 1963 VERSION OF ARTICLE IX, §2 TO LIMIT THE COUNTY’S LOCAL LEGISLATIVE AUTHORITY WAS PATENTLY ERRONEOUS The original grant of power in 1937 gave Nassau County "full and complete ... powers of local legislation pursuant to the provisions of section twenty six of article three of the constitution.” Local Legislation Act and Charter, §162. New York adopted constitutions in 1777, 1821, 1846, 1894, and 1938. The 189421 Constitution, as amended, was the most recently-adopted Constitution, prior to the 1938 Constitution. See website of the Historical Society of the New York Courts at www.courts.state.ny.us/history/legal-history-new-york. 5000097778-12 Article III, §26(2), as it existed in 1937, directed the State legislature to21 provide alternative forms of government for counties, including “the exercise by the board of supervisors or other elective body of powers of local legislation and administration” without limitation. In 1939, these home rule provisions were moved from Article III to Article IX upon the adoption of the 1938 New York Constitution, and thereafter, all references to “section twenty six of article three” of the Constitution were changed to “section two of article nine” to reflect the intervening 1938 amendment to the Constitution. The 1938 Constitution contains a savings clause in Article IX, §3 which provided: “Existing laws applicable to the government of counties. . . shall continue in force until repealed, amended, modified or superseded by law or by a form of government. . .”. When the Constitution was revised in 1963, Article IX, §2(c) was amended to enlarge the powers granted to counties (“In addition to powers granted in. . .any other law”) and to permit them to enact local legislation that was not inconsistent with the constitution or any general law regarding its own “property, affairs or 5100097778-12 government” and relating to certain enumerated subjects whether or not they related to its “property, affairs, or government.” In enacting these amendments in 1963, the legislative intent and effect was to greatly expand home rule authority and to “grant[] increasingly greater autonomy to local governments.” Kelley v. McGee, 57 N.Y.2d 522, 535, 457 N.Y.S.2d 434, 438 (1982); Heimbach v. Mills, 67 A.D.2d 731, 731, 412 N.Y.S.2d 668, 669 (2d Dep't 1979)(“Section 2 [of Article 9 of the constitution] is concerned with all units of local government and its focus is on general local legislative power, not charters or alternative forms of county government. Subdivision (h) of section 1 of article IX, on the other hand, specifically authorizes” alternative governments and charters); Rozler v. Franger, 61 A.D.2d 46, 54, 401 N.Y.S.2d 623, 628 (4th Dep't 1978)(“Article IX, § 2 is not a limitation on the power of local governments to adopt and amend local laws but is a grant of power ‘in addition to powers granted in the statute of local governments or in any other law' (N.Y. Const. art. IX, § 2, subd. c)”). Specifically, revised Article IX, §2(c) provided as follows: “(c) In addition to powers granted in the statute of local governments or any other law, (i) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to its property, affairs or government and, (ii) every local government shall have power to 5200097778-12 adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government, except to the extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government: . . .(8) The levy, collection and administration of local taxes authorized by the legislature and of assessments for local improvements, consistent with laws enacted by the legislature.” The 1963 revisions also contained an express savings clause: “The provisions of this article shall not affect any existing valid provisions of acts of the legislature or of local legislation and such provisions shall continue in force until repealed, amended, modified or superseded in accordance with the provisions of this constitution.” Article IX, §3(b). Because the 1963 revisions to the N.Y. Constitution did not exist at the time the County received its broad powers of local legislation, including the power to assess, levy, and collect taxes, and the power to supersede and repeal any law that applied only to Nassau County pursuant to Section 151 of the Local Legislation Act and its own Charter, and this prior broad grant of authority was completely preserved and protected by the savings clauses in both the 1938 Constitution and the 1963 revisions, the 1963 adoption of Article IX, §2(c)(ii)(8) could not apply to bar enactment of The Common Sense Act. All the savings clauses contained in the Constitution, the home rule statutes, and the Charter had a genuine purpose 5300097778-12 and meaning – to preserve pre-existing home rule authority of counties and other municipalities. “The Legislature. . .is presumed to have contemplated some useful purpose for every portion of a statutory enactment. Pearson v. Pearson, 81 A.D.2d 291, 293, 440 N.Y.S.2d 345, 347 (2d Dep’t 1981), and “meaning must, if possible, be given to the entire statute and every part and word thereof.” McKinney’s Statutes, §98(a). Thus, when the legislature in 1937 granted Nassau County "full and complete ... powers of local legislation pursuant to the [alternative form of government] provisions of section twenty six of article three of the constitution," it was referring to Article III, §26 of the 1894 Constitution (as amended), later renumbered as Article IX, §2 of the 1938 Constitution, and could not, as the Appellate Division erroneously found, be referring to the later renumbered provisions of Article IX, §2 of the 1963 revisions to the Constitution. Nevertheless, the Appellate Division wrongfully held the County was subject to Article IX, §2(c)(ii)(8) as enacted in 1963. To state the obvious, the current constitutional version was not even enacted until decades after the County was granted full powers of “local legislation” and moreover, the State legislature was granting powers under the prior version of Article IX, §2, not the 1963 version of Article IX, § 2(c)(ii)(8). Indeed, it could not have granted powers under 5400097778-12 the 1963 version of Article IX, §2 because it did not even exist until decades later. See County of Nassau v. Inc. Village of Woodsburgh, 86 A.D.2d 856, 857, 447 N.Y.S.2d 326, 328 (2d Dep’t 1982)(applying home rule provisions of Article III, §26 that existed at the time the County Charter was adopted, not current version of home rule laws found in Article IX to determine validity of law); Matter of Main Street In The Village of Sing Sing, 98 N.Y. 454 (1885)(“The charter of 1859... necessarily referred to the provisions of the General Highway Act, then existing. A subsequent amendment of the general law would not operate ipso facto as an amendment of the charter.”) By refusing to apply the pre-1963 constitutional provisions, and by perversely holding that the 1963 expansion of local home rule authority somehow limited Nassau County’s authority, the Appellate Division drastically misinterpreted and misapplied the State Constitution, including the saving clause of Article IX, §3. That savings clause fully preserved the lawful grant of broad local law authority previously given to Nassau County to amend and rescind any state legislative acts which pertained only to it and to enact The Common Sense Act. See also No. 99-4, 1999 N.Y. Op.Atty Gen. (Inf.)(savings clause of Article IX, § 3(b) continued a certain section of the Nassau County Charter in effect because that section was in accord with the constitution when enacted); see also The Appellate Division also erroneously found that The Common Sense Act “is in22 conflict with Municipal Home Rule Law §34(3)(a), a general law that provides that, except in accordance with provisions of law enacted by the New York State Legislature, a county charter or charter law shall not supersede ‘any general or special law enacted by the legislature which relates to the imposition, judicial review or distribution of the proceeds of taxes or benefit assessments.’” (JRxx) The Court’s reliance on this section was erroneous because, among other things: (i) MHRL is subject to conferrals of authority contained in other laws ("Except in accordance with provisions of this chapter or with other laws enacted by the legislature"), and thus could have no impact on limiting the broad powers of local legislation granted to the County; (ii) MHRL § 34(3)(a)(3) is addressed to charter amendments, and has no application to the amendment of the Administrative Code; and (iii) even if it did apply, the section contains no restrictions relating to allocation of tax refunds, but only refers to “the imposition, judicial review or distribution of the proceeds of taxes or benefit assessments.” Further, and even if it did apply, the Appellate Division ignored the existence of the savings clause of MHRL §35 which expressly provides that all prior laws and charters previously enacted, and the local authority provided therein, are continued and reaffirmed unless specifically rescinded by the legislature. 5500097778-12 Municipal Home Rule Law §35 (continuing prior grants of authority unless specifically rescinded).22 Because the Appellate Division erred in applying the 1963 amendments to the County in the first instance, and failed to recognize that the County had the power and authority to enact The Common Sense Act (a local law) to repeal the County Guaranty (a special law applying only to Nassau County), pursuant to the powers granted to the County under Article IX, §§2 and 3 of the Constitution, the Local Legislation Act, its own Charter, and under well-settled case law, the Order must be reversed as a matter of law. 5600097778-12 POINT III EVEN IF ARTICLE IX, §2(C)(II) OF THE 1963 AMENDMENTS APPLIED, IT DOES NOT PROHIBIT THE COUNTY FROM ENACTING THE COMMON SENSE ACT AS A MATTER OF LAW Even if the 1963 amendments were applicable here (which they are not), they do not limit or prohibit the County from enacting The Common Sense Act as a matter of law. In finding that the 1963 amendments prohibited the County from repealing the County Guaranty, the Appellate Division completely misconstrued the provisions of Article IX, §2(c)(ii)(8) to the point where it rendered them essentially meaningless, employing a construction that had no support in a single cited case or otherwise. Construing the language in Article IX, §2(c)(ii)(8) properly and in accordance with fundamental rules of statutory construction, the 1963 revisions pose absolutely no limitation on the County’s authority to enact a local law amending its Administrative Code and repealing the County Guaranty, particularly where that local law is entirely consistent with the general laws of the State of New York. “When presented with a question of statutory interpretation, our primary consideration ‘is to ascertain and give effect to the intention of the Legislature’ ... The starting point for discerning legislative intent is the language of the statute 5700097778-12 itself. Courts must harmonize the various provisions of related statutes and ... construe them in a way that renders them internally compatible.” Yatauro v. Mangano, supra; Dutchess County Dept. of Social Services ex rel. Day v Day, supra (“Courts must ‘harmonize the various provisions of related statutes and construe them in a way that renders them internally compatible.’”) “[M]eaning and effect should be given to every word of a statute [or constitutional provision].” Leader v. Maroney, Ponzini & Spencer, supra (“Statutes will not be construed as to render them ineffective.”); McKinney’s Statutes §144. Article IX, §2(c)(ii)(8) provides: (c) In addition to powers granted in the statute of local governments or any other law, (i) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to its property, affairs or government and, (ii) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government, except to the extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government: . . .(8) The levy, collection and administration of local taxes authorized by the legislature and of assessments for local improvements, consistent with laws enacted by the legislature.” 5800097778-12 Thus, aside from any other powers the County was granted (such as the additional powers contained in the Local Legislation Act), the County possessed the authority to change or supersede all special laws related to (1) their property, government and affairs, or (2) the levy, collection and administration of state authorized local taxes “not inconsistent with. . .any general law” and “consistent with laws enacted by the legislature.” The Appellate Division misconstrued the closing phrase in subparagraph (8) which states “consistent with laws enacted by the legislature” to mean that the County could only enact a local law that was consistent with both general laws and special laws, even though the text of both subsections (c)(1) and (c)(2) plainly states the County’s authority to enact local laws that are not inconsistent with “general laws” only, not special laws. Indeed, subsection 2(c)(ii) specifically states that local laws may be enacted that are not inconsistent with “any general law relating to the following subjects,” and then proceeds to list the 10 subjects. It defies fundamental rules of statutory construction, as well as common sense and logic, for the precatory language to specify that local laws may be enacted that are not inconsistent with general laws relating to the 10 listed subjects, but then find that subsection (8) further requires that the local law not be inconsistent with 5900097778-12 general laws and special laws. Nevertheless, the Appellate Division determined that the closing phrase in subparagraph 8 which used the word “laws enacted by the legislature” instead of the words “general law,” meant that any local law had to be consistent with both general laws and special laws of the State. Such a construction would be absurd, especially since general laws often conflict with special laws. Indeed, it appears that no Court (other than the Appellate Division in this case) has ever construed the phrase “consistent with laws enacted by the legislature” in this manner. Further, such a construction fails to harmonize the language of this section, which states a local government’s authority to enact laws relating to those 10 specific subjects must not be inconsistent with “general laws.” The only way to harmonize this with the final clause of Section 2(c)(ii)(8) referring to “laws,” is to find that the word “laws” was referring to “general laws,” consistent with the beginning language of this same section. If, as the Appellate Division erroneously concluded, the Legislature wanted to deprive municipalities of authority to change or supersede special laws concerning the levy, collection, or administration of state authorized local taxes, it would have done so, and specifically would have provided in Section 8 that it be consistent with “general and special laws.” Moreover, it certainly would not have 6000097778-12 said so in such an obscure and self-contradictory manner, in a section of the Constitution addressed to guaranteeing and enlarging municipal home rule rights to local governments. Further, construing this phrase so as to add the phrase “special laws” is improper, and this Court has repeatedly held that “that the failure of the Legislature to include a term in a statute is a significant indication that its exclusion was intended.” Commonwealth of Northern Mariana Islands v. Canadian Imperial Bank, __ N.Y.3d __, 2013 WL 1798585 (2013)(construing the phrase “possession or custody” in CPLR §5225(b), which did not contain the word “control,” as meaning legislature meant to exclude “control”); McKinney’s Statutes §98. The only case cited by the Appellate Division in support of its flawed interpretation (which was not cited by any of the parties below), was City of White Plains v. Del Bello, 87 A.D.2d 483, 452 N.Y.S.2d 71 (2d Dep’t 1982), which is completely inapplicable and indeed, squarely supports the County. The Appellate Division cited this case for the proposition that a county may only enact a local law relating to local taxes if the local law is “‘consistent with State laws,’ irrespective of whether the State laws are general laws or special laws.” (JRxx)(quoting City of White Plains, supra). However, the Court in City of 6100097778-12 White Plains did not espouse the proposition advanced by the Appellate Division in the case at bar, nor could it have because City of White Plains did not involve a special law at all, but only concerned the issue of whether a local law enacted by Westchester County relating to sales tax was consistent with a general law. Indeed, in construing the language of Article IX, §2(c)(ii)(8), the City of White Plains Court construed the phrase “consistent with laws” to mean consistent with state general law, further supporting the County’s position herein. Moreover, City of White Plains quoted from Sonmax, Inc. v. City of New York, 43 N.Y.2d 253, 401 N.Y.S.2d 173 (1977), which also concerned whether a local law was inconsistent with a general law, not a special law, and concluded that the local law was validly enacted and was not inconsistent with a general law. In a case deciding whether a local law violated Article IX, §2(c)(ii)(8), this Court addressed the closing modifier of Article IX. In Matter of Fifth Avenue Office Center Co. v. City of Mount Vernon, 89 N.Y.2d 735, 740, 658 N.Y.S.2d 217, 219 (1997), this Court noted that Article IX empowered local governments to “adopt laws relating to the ‘the levy, collection and administration of local taxes,’ so long as those enactments are ‘consistent with laws enacted by the legislature.’” It went on to find that the local law in question was inconsistent with the general laws of the State, and was therefor invalid. Similarly, in 41 Kew Gardens Road 6200097778-12 Assoc. v. Tyburski, 70 N.Y.2d 325, 332, 520 N.Y.S.2d 544, 547-48 (1987), in again applying Article IX, §2(c)(ii)(8), this Court held that the City of New York’s authority to enact a local law affecting taxes “may not be exercised in a manner inconsistent with the Constitution or any general law of the State” and then found the local law it enacted was valid because, inter alia, it was not inconsistent with general laws. In sum, the use of the term “consistent with laws enacted by the legislature” means consistent with general laws (not special laws or other legislative acts). Because the Common Sense Act is not inconsistent with the Constitution or any general laws, but is in fact consistent with the Real Property Tax Law, its enactment was valid and proper, even if the 1963 amendments to the N.Y. Constitution applied. To decipher its plain meaning, it helps to read the final “consistent with laws” modifier with the initial “not inconsistent with . . . any general law” grant of authority: “(ii) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law ... (8) ... consistent with laws enacted by the legislature.” Having specifically granted local governments the right to adopt local laws “not inconsistent” with general laws, the modifier “consistent with laws enacted by the legislature” means that the 6300097778-12 local law on this subject must be both “not inconsistent” and “consistent” with the general law. See Sonmax, Inc. v. City of New York, supra at 258 (“not inconsistent” and “consistent” do not mean the same thing in this constitutional section and in MHRL §10; “not inconsistent” means does not “contradict” the general law, while “consistent” means that it “parallel[s]” the general law). Thus, Nassau County’s enactment of The Common Sense Act – which made Nassau County consistent with the provisions of Real Property Tax Law §726(1) – was validly enacted because it made itself consistent with the general law. See City of White Plains v. Del Bello, supra (“consistent with laws” required the local legislation to be consistent with a general tax law). POINT IV EVEN IF ARTICLE IX, §2(C)(II)(8) APPLIED, THE COMMON SENSE ACT IS VALID AND PROPER BASED ON THIS COURT’S HOLDING IN SONMAX, INC. V. CITY OF NEW YORK, 43 N.Y.2D 253 (1977), WHICH ESTABLISHED THAT MUNICIPAL HOME RULE LAW §10(II)(1)(A)(8) EXEMPTS LOCAL LAWS RELATED TO PROPERTY TAXES FROM HAVING TO BE CONSISTENT WITH ANY OTHER LAWS As this Court has reiterated, “Article IX, §2(c)(ii) of the New York State Constitution provides ‘every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law. . . except to the extent that the legislature shall restrict the adoption of such a local law.’” DJL Restaurant Corp. v. City of New York, 96 N.Y.2d 91, 94, 6400097778-12 725 N.Y.S.2d 622, 624 (2001). Moreover, because “[t]o implement article IX, the Legislature enacted the Municipal Home Rule Law [§ 10],” a law enacted in compliance with MHRL §10 is valid. Id. MHRL §10(ii)(1)(a)(8) implements the provisions of Article IX, §2(c)(ii)(8) of the Constitution, and provides that as long as a local law is not inconsistent with general laws only, a county may enact local laws: (ii) every local government, as provided in this chapter, shall have power to adopt and amend local laws not inconsistent with the provisions of the constitution or not inconsistent with any general law, relating to the following subjects, whether or not they relate to the property, affairs or government of such local government, except to the extent that the legislature shall restrict The adoption of such a local law relating to other than the property, affairs or government of such local government: a. A county, city, town or village: …. (8) The levy and administration of local taxes authorized by the legislature and of assessments for local improvements, which in the case of county, town or village local laws relating to local non-property taxes shall be consistent with laws enacted by the legislature. This MHRL subsection is notable for two reasons. First, it exempts cities from the requirement that a local law under subsection (8) be “consistent with laws enacted by the legislature.” Second, it exempts local laws relating to the levy and administration of property taxes from that requirement as well. 6500097778-12 This Court in Sonmax, Inc. v. City of New York, supra had the opportunity to address the first exemption noted above. There, the city defendant enacted a local law amending a provision of its administrative code (like here), concerning in rem tax foreclosure proceedings which had previously been enacted by a special act of the State Legislature in 1948 (also like here). Critically, this Court noted that the provisions of Municipal Home Rule Law §10 tracked the constitutional language of Article IX, §2(c)(ii)(8), “except that the requirement that local laws relating to the levy and administration of local taxes authorized by the Legislature be consistent with laws enacted by the Legislature is imposed only counties, towns, and villages, not on cities.” Id. at 257. Thus, the local law only needed to be consistent with the general law (the Real Property Tax Law), and not special laws. Because the local law was consistent with the general law, this Court upheld the city’s local law as valid. The Court now has the opportunity to apply the second exemption under MHRL §10(ii)(1)(a)(8), which exempts “local laws relating to local [] property taxes” from having to be “consistent with laws enacted by the legislature.” By reason of this exemption, Nassau County possesses the authority to enact a local law which amends any special law pertaining to the levy and administration of local property taxes. 6600097778-12 In short, Sonmax established that when MHRL §10(ii)(1)(a)(8) exempts a municipality from having to be consistent with laws, the municipality is granted authority to supercede any special law pertaining to the levy and administration of taxes. Because MHRL §10(ii)(1)(a)(8) exempts municipal property taxes from having to be consistent with “laws,” Nassau County had unquestionable authority to enact a local law removing the County Guaranty from its Administrative Code. CONCLUSION The Appellate Division's ruling should be reversed and judgment should be granted in favor of the County declaring that The Common Sense Act enacted by Local Law 18-2010, was a valid and proper exercise of the County's local legislative powers as a matter of law. Dated: Garden City, New York May 20,2013 Of counsel: Ronald J. Rosenberg, Esq. Lesley A. Reardon, Esq. Judah Serfaty, Esq. Edward M. Ross, Esq. 00097778- J2 R9fiald J. R~ciiberg, Esq. Rosenberg Calica & Birney LLP f. Special Counsel for the County ofNassau, the County Legislature, and County Executive Edward P. Mangano 100 Garden City Plaza, Suite 408 Garden City, New York 11530 (516) 747-7400 -and- Nassau County Attorney's Office One West Street Mineola, New York 11501 (516) 571-3056 67