In the Matter of Baldwin Union Free School District, et al., Respondents,v.County of Nassau, Appellant. (And an Action and Another Proceeding.)

Brief

N.Y.January 7, 2014

To Be Argued By: Catherine V. Battle Time Requested: 15 Minutes APL-2013-00069 (full captions infra) COURT OF APPEALS STATE OF NEW YORK BALDWIN UNION FREE SCHOOL DISTRICT, et aI., PetitionersfPlaintiffs-Respondents, -against- Nassau County Index No. 3280-11 COUNTY OF NASSAU, RespondentlDefendant -Appellant. Proceeding No.1 BARBARA HAFNER and LINDA WIENER, Plaintiffs-Respondents, Nassau County -against- Index No. 4193-11 COUNTY OF NASSAU, NASSAU COUNTY LEGISLATURE, and EDWARD P. MANGANO, in his capacity as County Executive of the County ofNassau, Defendants-Appellants. Proceeding No.2 THE TOWN OF NORTH HEMPSTEAD, et al., PetitionersfPlaintiffs-Respondents, -against- Nassau County Index. No. 4381-11 THE COUNTY OF NASSAU, RespondentlDefendant -Appellant. Proceeding No.3 BRIEF FOR PLAINTIFFS-RESPONDENTS IN PROCEEDING NO.2 RICHARD E. CASAGRANDE Attorney for Plaintiffs-Respondents BARBARA HAFNER AND LINDA WIENER 52 Broadway, 9th Floor New York, New York ·10004 (212) 533-6300 Facsimile No.: (212) 995-2347 Catherine V. Battle, OfCounsel Brief Completed: August 6, 2013 Full Captions - APL-2013-00069 -------------------------------------------------------------------------------------------)C 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 lJNION 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, VALLEY 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 ofEducation of the Plainedge Union Free School District, PetitionerslPlaintiffs-Respondents, -against- COUNTY OF NASSAU, RespondentlDefendant-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. -------------------------------------------------------------------------------------------)C Proceeding No.1 Nassau County Index No. 3280-11 TABLE OF CONTENTS PAGE TABLE OF CONTENTS ............................................ 1 TABLE OF AUTHORlTIES ......................................... iv QUESTIONS PRESENTED ......................................... 1 STA TEMENT OF THE CASE ........................................ 2 PRELIMINARY STATEMENT ....................................... 6 LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 POINT I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 THE PUBLIC POLICY REASONS FOR OR AGAINST THE COUNTY GUARANTY SHOULD HAVE NO IMPACT ON THE COURT'S_DETERMINATION, AS THEY ARE EXCLUSIVELY VESTED IN THE STATE LEGISLATURE POINT II ........................................................ 13 THE OVERARCHING PRINCIPLES OF LAW APPLICABLE TO THIS CASE COMPEL THE CONCLUSION THAT THE COUNTY DOES NOT POSSESS THE POWER TO REPEAL THE COUNTY GUARANTY BY LOCAL LAW A. Local Governments May Exercise Only Those Powers Delegated to Them by the State ............................................ 13 B. The State Legislature in the County Charter Authorized the County to Enact Local Legislation Encompassing Only Matters of Local Concern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 TABLE OF CONTENTS PAGE POINT III ........................................................ 17 THE EVOLUTION OF THE COUNTY'S POWER TO ENACT LOCAL LAWS DEMONSTRATES THAT THE COUNTY W AS NOT GIVEN POWER TO REPEAL THE GUARANTY BY LOCAL LAW A. The 1935 Amendments to the 1894 State Constitution and the County Charter ................................................ 17 B. The 1938 Constitution, Chapter 700 of the Laws of 1939, and the Nassau County Administrative Code ............................ 20 C. The 1963 Constitution and the Municipal Home Rule Law .............. 21 POINT IV ....................................................... 23 THE EVOLUTION OF THE COUNTY'S POWER TO ENACT CHARTER LAWS DEMONSTRATES THAT THE COUNTY W AS NOT GIVEN POWER TO REPEAL THE GUARANTY BY CHARTER LAW A. The County Charter Law, the 1963 Constitution, and the Municipal Home Rule Law ....................................... 23 POINT V ........................................................ 25 THERE IS NO AUTHORITY IN THE COUNTY CHARTER FOR THE FOR THE REPEAL OF THE COUNTY GUARANTY BY LOCAL LAW A. The County Charter Is Not a Source of Right to the County to Legislate with Respect to Taxation ............................... 27 11 TABLE OF CONTENTS PAGE B. The County Charter Is Not a Source of Right to the County to Enact Local Legislation Which Affects the Maintenance, Support, and Administration of Education Within the County ........... 30 POINT VI ....................................................... 32 THE 1963 CONSTITUTION AND THE MUNICIPAL HOME RULE LAW PROHIBIT THE REPEAL OF THE GUARANTY BY LOCAL LAW A. Article IX, §2( c )(ii)(8) of the State Constitution ...................... 32 B. Municipal Home Rule Law § 34(3)(a) .............................. 36 C. Article XI, § 1 and IX, § 3(a)(1) of the State Constitution and Municipal Home Rule Law §§ 11 (1)( c) and 34(3)(b) ............... 40 D. Municipal Home Rule Law § 34(3)(c) .............................. 45 POINT VII ....................................................... 46 LOCAL LAW NO. 18-2010, IF NOT INVALID, IS NEVERTHELESS INOPERABLE BECAUSE OF THE COUNTY'S FAILURE TO CONDUCT A REFERENDUM CONCLUSION ................................................... 49 111 TABLE OF AUTHORITIES PAGE Cases Adler v. Deegan, 251 N.Y. 467,167 N.E. 705 (1929) ............... 14, 15-16 Albano v. Kirby, 36 N.Y.2d 526, 369 N.Y.S.2d 655 (1975) ................. 35 Albany Area Builders Association v. Town ofGuilderland, 74 N.Y.2d 372,547 N.Y.S.2d 627 (1989) ........................... 13-14 Board ofEduc. ofU.F.8.D. Number Four ofthe Town ofGreece v. Board ofEduc. ofCity ofRochester, 23 A.D.2d 805,258 N.Y.S.2d 194 (4th Dep't 1965) .................... 42-43 Bugeja v. City ofNew York, 24 A.D.2d 151,266 N.Y.S.2d 80 (2d Dep't 1965), aff'd, 17 N.Y.2d 606, 268 N.Y.S.2d 564 (1996) ............ 42 City ofNew York v. State ofNew York, 94 N.Y.2d 577, 709 N.Y.2d 122 (2000) ............................. 10,27 City ofNew York v. Village ofLawrence, 250 N.Y. 429, 165N.E.836(1929) ................................... 16 County Securities, Inc. v. Seacord, 278 N.Y. 34, 15 N.E.2d 179 (1938) ................................ 27,28 Fuhrmann v. Graves, 235 N.Y. 77,138 N.E. 743 (1923) ................ 31-32 Gunnison v. Board ofEducation ofCity ofNew York, 176 N.Y. 11, 168N.E.I06(1903) .................................... 31 In re Wadham's Estate 249 App. Div. 271, 292 N.Y.S. 102 (1936) ............................................. 12 IV TABLE OF AUTHORITIES PAGE Konz v. Bedell, 273 A.D. 777, 75 N.Y.S.2d 18 (2d Dep't 1947), aff'd, 298 N.Y. 585,81 N.E.2d 322 (1948) ............... 23 Matter ofBoard ofCooperative Educational Services ofNassau County v. Gaynor, 33 A.D.2d 701, 306 N.Y.S.2d 216 (2d Dep't 1969) .............. 42 Matter ofthe Board ofEducation ofthe City School District ofthe City ofNew York v. City ofNew York, 41 N.Y.2d 535, 394N.Y.S.2d 148(1977) ........................................ 41-42 Matter ofDivisich v. Marshall, 281 N.Y. 170,22 N.E.2d 327 (1939) ......... 31 New York Telephone Company v. Supervisor ofTown of North Hempstead, 77 A.D.3d 121,908 N.Y.S.2d 401 (2d Dep't 2010) ....... 25 Reuss v. Katz, 43 Misc. 2d 921, 252 N.Y.S.2d 546 (Supreme Ct., New York Cty. 1964), aff'd, 21 A.D.2d 968, 252 N.Y.S.2d 87 ..................................... 43 Seaman v. Fedourich, 16 N.Y. 2d 94, 262 N.Y.S.2d 444 (1965) ............. 14 Sonmax, Inc. v. City ofNew York, 43 N.Y.2d 253, 401 N.Y.S.2d 17 (1977) ............................................ 27 Weber v. City ofNew York, 18 Misc. 2d 543, 195 N.Y.S.2d 269 (Supreme Ct., New York Cty. 1959) ................................... 27 Administrative Opinions 1983 N. Y. Op. Atty. Gen. (Inf) 1033 ................................... 43 1999 NY Op. Atty. Gen. (Inf) 1026 ................................... 24 v TABLE OF AUTHORITIES PAGE Constitutional Provisions 1894 N.Y. Constitution, Article III, §26 .......................... 17-18,26 1894 Constitution, Article XII, § 2 ................................ . . . . 16 1938 N.Y. Constitution, Article IX ........................... 20,21,26,31 N.Y. Constitution, Article IX ........................................ 23 N.Y. Constitution, Article IX, § 1 (h) (1 ) ............................. 23-24 N.Y. Constitution, Article IX, § 2 .................................. 22,41 N.Y. Constitution, Article IX, § 2(a) ................................ 22,40 N.Y. Constitution, Article IX, § 2(c) ................................... 22 N.Y. Constitution, Article IX, § 2(c)(ii)(4) ........................... 35,36 N.Y. Constitution, Article IX, § 2(c)(ii)(8) .................. 32,33,34,35,36 N.Y. Constitution, Article IX, § 3 ..................................... 10 N.Y. Constitution, Article IX, § 3 (a)(1 ) ........................ 2,41,43,44 N.Y. Constitution, Article IX, § 3(b) .................................. 26 N.Y. Constitution, Article IX, § 9(h)(1) ................................ 47 N.Y. Constitution, Article XI ...................................... 2,41 VI TABLE OF AUTHORITIES PAGE State Statutes and Legislation Laws of 1916, Chapter 541 .......................................... 21 Laws of 1937, Chapter 618 .................................... 17, 18,21 Laws of 1939, Chapter 700 ................................... 20,21,26 Laws of 1996, Chapter 503 ....................................... 37,38 Municipal Home Rule Law § ll(1)(c) ............................ 2,43,44 Municipal Home Rule Law § 33(7)(b) ........................... 46,47,48 Municipal Home Rule Law § 34(3)(a) ................. 2,4,25, 36, 37,40,49 Municipal Home Rule Law § 34(3)(c) ...................... 3,25,45,46,47 Laws of 1936, Chapter 879 .................................... 17, 18, 19 Laws of 1948, Chapter 98 ......................................... 7, 26 Laws of 1948, Chapter 851 ........................................ 7, 26 Civil Practice Law and Rules 5601(b)(1) ................................ 5 County Law Article 6-A ............................................ 23 Municipal Home Rule Law § 33 ................................... 24, 25 Municipal Home Rule Law § 33(2) ................................ 24, 25 Municipal Home Rule Law § 34(3)(b) ......................... 3,25,44, 45 Vll TABLE OF AUTHORITIES PAGE Municipal Home Rule Law § 35(2) ................................... 26 Real Property Tax Law § 708(3) ............................. 37,38,39,40 Real Property Tax Law § 712(2-a) ........................... 37,38,39,40 Statutes § 98(a) ................................................... 35 Statutes § 231 ..................................................... 35 Local Legislative Laws and Materials Nassau County Charter, Article I-A ............................. 18, 20, 21 Nassau County Charter § 103(2) ................................... 18, 19 Nassau County Charter § 150 .................................. 18-19, 20 Nassau County Charter § 162 ..................................... 19,20 Nassau County Charter § 606(a) ....................................... 6 Nassau County Charter § 2201 .................................... 29-30 Nassau County Administrative Code § 6-17.3 ........................ 39,40 Nassau County Administrative Code § 6-26.0(b)(3)(c) ..................... 6 Nassau County Local Law No. 18-2010 ........................... passim Publications Adopting Local Laws in New York State( 1998) ......................... 36 (published by the New York State Department of State) V111 QUESTIONS PRESENTED 1. Whether Article III, § 26 ofthe 1935 amendments to the 1894 New York State Constitution, the Nassau County Charter as enacted by the New York State Legislature in Chapter 879 ofthe Laws of1936 and Chapter 618 ofthe Laws of1937, the 1938 New York State Constitution, andlorthe amendments to the Nassau County Charter enacted by Chapter 700 of the Laws of 1939, provide any source of right to the County ofNassau to enact a local law repealing the County Guaranty, a special State law enacted in 1948 which transferred from school districts and other municipal districts within the County all financial obligations arising from the County's erroneous assessment of real property. The Appellate Division held that they do not provide such a source of right. 2. Whether the 1963 New York State Constitution, currently in effect, and/or the Municipal Home Rule Law prohibit the County ofNassau from enacting a local law repealing the County Guaranty. The Appellate Division held that both the State Constitution and the Municipal Home Rule Law prohibit the County of Nassau from enacting such a local law. -1 STATEMENT OF THE CASE This is an appeal taken by Defendants-Respondents County ofNassau, Nassau County Legislature, and Edward P. Mangano, in his official capacity as County Executive ofthe County Executive of the County ofNassau (collectively referred to as "the County"), from an Opinion & Order of the Appellate Division, Second Department dated February 27, 2013 in which the Appellate Division held that Nassau County Local Law No. 18-2010 ("LL No. 18-2010") "violates the provisions in the New York State Constitution [Article IX, § 2(c )(ii)(8)] and the Municipal Home Rule Law [§ 34(3)(a)] that limit the County's power to enact laws relating to taxation that are inconsistent with State law." (JR. xvii)) In light of this determination, the Appellate Division declined to reach additional arguments supporting the invalidation ofLL No. 18-2010, specifically: (1) that the County's enactment ofLL No. 18-2010: (a) restricts and impairs the power of the State Legislature in relation to "[tJhe maintenance, support, or administration ofthe public school system as required by Article XI, § 1 ofthe State Constitution, in violation of Article IX, § 3 (a)( 1) of the Constitution; (b) violates Municipal Home Rule Law § 11 (1)( c), which prohibits the adoption ofa local law which "[aJpplies to or affects the maintenance, support or administration of the educational system," in References to "JR. are to the Joint Record on Appeal. -2 the County; and (c) violates Municipal Home Rule Law § 34(3)(b), which prohibits the enactment of a charter law which supercedes any general or special law enacted by the legislature "[i]nsofar as it relates to the educational system in the county or to school districts therein;" (2) that LL No. 18-2010 violates Municipal Home Rule Law § 34(3)(c), which prohibits the enactment of a charter law which supercedes any general or special law enacted by the legislature "[ w ]hich requires that specified functions of government be performed or financed by units of local government" absent a transfer of functions, powers, or duties as authorized pursuant to Municipal Home Rule Law § 33(7)(b). Lastly, the Appellate Division also did not reach the question of whether, assuming arguendo the validity ofLL No. 18-2010, it would nevertheless be inoperable absent a referendum held pursuant to Municipal Home Rule Law §§ 34(3)(c) and 33(7)(b). (JR. 574) Plaintiffs-Respondents Barbara Hafner and Linda Wiener (collectively referred to as "the Respondents") are residents of the County who own real property therein. (JR. 574) As such, they pay taxes to both the County and the school districts in which they reside and their real property is situated. Respondents are also registered to vote from the County addresses at which they reside. (JR. 574) The Respondents commenced a declaratory judgment action in Supreme Court, Nassau County on March 21,2011 seeking a judgment: (a) declaring that the County violated the New -3 York Municipal Home Rule Law and the New York State Constitution by enacting LL No. 18-2010; (b) declaring that LL No. 18-2010 is invalid, unenforceable, inoperable, and ofno legal effect; and (c) permanently enjoining the enforcement of LL No. 18-2010. (JR. 573; 588-89) The Respondents' action was joined pursuant to CPLR 602 for the purposes oftrial with Baldwin Union Free School District, et al. v. County a/Nassau and Matter a/the Town a/North Hempstead, et al. v. County 0/ Nassau, hybrid Article 78 proceedings/declaratory judgment actions seeking a judgment declaring LL No. 18-2010 null and void. (JR. 788-790) In an Order dated January 4,2012 (R. 5-11), Supreme Court, Nassau County (Adams, J.) held that the County was empowered by the Nassau County Charter to enact LL No. 18-2010, rejecting even the applicability of the Municipal Home Rule Law and provisions ofthe State Constitution to the County. (JR. 7-8) In essence, the Supreme Court held that, within the confines of Nassau County, the powers of the County Legislature and the County Executive are limited solely by the Nassau County Charter, not the provisions of the State Constitution or the Municipal Home Rule Law. In an Opinion & Order dated February 27, 2013, the Appellate Division, Second Department unanimously reversed the Supreme Court's ruling and invalidated LL No. 18-2010 on the basis that it violates Article IX, § 2( c )(ii)(8) ofthe New York Constitution and Municipal Home Rule Law Section 34(3)(a). (JR. xv-xxii) -4 In a Notice of Appeal dated March 11,2013, the County appealed from the Appellate Division's Opinion & Orderpursuantto CPLR 5601(b)(1). (JR. xi-xii) By letter dated March 25, 2013, this Court advised the parties that this appeal would proceed "in the normal course of briefing and argument." -5 PRELIMINARY STATEMENT With the adoption ofChapters 98 and 851 of the Laws of 1948, the New York State Legislature amended, respectively, the Nassau County Charter and the Nassau County Administrative Code by special State law to provide, among other related matters, that the County should bear all costs associated with the erroneous assessment ofreal property, including tax refunds necessi tated there by. (JR. 638) The titles of these laws expressly refer to the fact that their respective purposes were to amend the County Charter and the County Administrative Code. (JR. 596; 613) This legislation came to be known as "the County Guaranty." (JR. 56) ("the County Guaranty" or "the Guaranty"). The relevant provision in the County Charter was codified as County Charter § 606( a) and stated that: Any surplus existing or hereafter arising from the extension of taxes in excess ofthe amounts raised for the adopted budget shall be credited to the county and any deficiencies existing or hereafter arising from the extension of taxes for the adopted budgets shall by a county charge. (JR. 601) The applicable Administrative Code provision was codified as Nassau County Administrative Code § 6-26.0(b)(3)(c) and stated that: Notwithstanding any provisions of this chapter, or any other general or special law to the contrary, any deficiency existing or hereafter arising -6 from a decrease in an assessment or tax under subdivisions one, four and seven ofsection 6-24.0, or sections 6-12.0 or 5-772.0 ofthe code, or by reason of exemptions or reductions of assessments shall be a county charge. (RJC.87? In the legislative history of Chapters 98 and 851 of the Laws of 1948, the County plainly acknowledged that it lacked any authority to enact local legislation to effect the County Guaranty. (JR. 609-610) A letter dated February 25, 1948 recommending the passage of Chapter 98 from Nassau Deputy County Attorney G. Burchard Smith unambiguously states: In view of the establishment of the County Board of Assessors, whose members are charged with the duty ofpreparing the assessment rolls and extending the taxes, it is deemed to be in the best interests ofthe County ofNassau that section 607 ofthe Nassau County Government Law [the Nassau County Charter] be amended to provide that any surplus existing or hereafter arising from taxes in excess of the amount raised for the adopted budgets shall be credited to the county, and any deficiencies existing or hereafter arising from the extension oftaxes for the adopted budget shall be a county charge. This cannot be accomplished by local law and it is therefore recommended that the Governor gives his approval to this bill, which is now pending before him. 2 References to "RJC. _" are to the Joint Compendium of Sources Cited in Respondents' Briefs. -7 (JR. 609-610)( emphasis supplied).3 Nevertheless, in 2010, the County purported to effect repeal of the Guaranty by local law, specifically, LL No. 18-2010. The stated intent ofLL 18-2010 was as follows: The County Legislature ... desires to (i) amend the Nassau County Administrative Code, (ii) repeal the aforementioned Administrative Code provisions, so as to require that the jurisdiction that received the benefit of the taxes (or other levies or assessments) properly bears the cost of refunds, cancellations or credits of such taxes (or other levies or assessments) in accordance with the general law of the State of New York and (iii) amend section 606 of the County Government law of Nassau County [the Nassau County Charter J so as to delete the provision whereby any surplus arising from the extension of taxes are credited to the county, and any deficiencies arising from the extension of taxes shall be a county charge. Local Law No. 18-2010, Section 1. Legislative Intent (R. 57)( emphasis supplied). The issue before this Court is whether any legal basis exists for the County's purported repeal by local law ofthe special State legislative enactments known as the County Guaranty. The Respondents respectfully submit that there is none and that the Appellate Division's Opinion & Order dated February 27, 2013 should be 3 The County also acknowledged the interrelatedness of Chapters 98 and 851 in a March 4, 1948 letter from Smith in support of Chapter 851 in which Smith stated, "the subject of this bill is closely related to the bill which has become chapter 98 of the laws of 1948. The two were prepared and introduced together and it is recommended that the Governor give his approval to this legislation. " -8 affirmed. -9 LEGAL ARGUMENT POINT I THE PUBLIC POLICY REASONS FOR OR AGAINST THE COUNTY GUARANTY SHOULD HAVE NO IMPACT ON THE COURT'S DETERMINATION, AS THEY ARE EXCLUSIVELY VESTED IN THE STATE LEGISLATURE A significant portion of the County's brief is devoted to the alleged indefensibility of the County Guaranty from a public policy standpoint, as well as speculation as to the political motives for the enactment of the Guaranty in the first instance. For example, the County represents that "[t]he true motive behind requesting the County Guaranty was for purely selfish political purposes, and not in furtherance ofany legitimate public policy." (Appellants' Brief, p. 21) The question before this Court is not, however, whether the County Guaranty represents good or bad public policy. It is whether the County Guaranty, a special State legislative enactment which represents the public policy ofthis State, can be repealed by a local legislative enactment. In a footnote, citing City o/New Yorkv. State, 94 N.Y.2d 577, 709 N.Y.2d 122 (2000), even the County acknowledges the irrelevancy these arguments, yet it claims that it is asking the Court "to consider the political underpinnings of the County Guaranty ... merely to provide context and background ofthe enactment ofthe 1948 -10 special law enacting the County Guaranty." (Appellants' Brief, p. 21, fn. 10) There is, however, no basis in the Joint Record on Appeal for the County's speculations. While the legislative history of the Guaranty's enactment is part of the Joint Record on Appeal (JR. 596-613), it fails to substantiate the County's claimed political rationale for the enactment. What is most misleading about the County's depiction ofthe enactment ofthe Guaranty is the characterization of it as a response by the State legislature to purely local political concerns. The County asserts at page 23 ofits briefthat "[r]ecognizing 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 ofthe Administrative Code to enact the County Guaranty." In fact, the legislative history of the County Guaranty establishes that its enactment in 1948 by special State law (notwithstanding the County's then..,existing ability to enact local laws ) aligned the County with general State policy at the time. As set forth in a letter from Deputy Comptroller Archibald Galloway to Governor Thomas E. Dewey: The change proposed by this measure conforms to the general practice under the Tax Law and the Education Law whereby the amount of a refund of all or part of an illegal or erroneous tax returned to a county -11 is spread over the entire county (In re Wadham' s Estate (1936) 249 App. Div. 271; 292 N.Y.S. 102, 108-109). (JR. 634) In Wadham 's Estate, Erie County argued that, on the basis of equity, it should be relieved of its obligation to pay the school district portion of taxes which it had refunded as erroneous. Wadham's Estate 249 App. Div. 271,278,292 N.Y.S. 102, 108 (1936). The county argued that compelling county taxpayers as a whole "to contribute to the maintenance ofschool district No.3 ofthe town ofWest Seneca by such refund ... would bring about an unjust and inequitable result, by dragging in and compelling outsiders to defray a part of the expense of a school district which should be borne entirely by the inhabitants thereof." Wadham 's Estate, 249 App. Div. at 278, 292 N.Y.S. at 108. The Appellate Division rejected this argument, citing Court of Appeals' case law in which it was held that: [T]he power of the Legislature in reference to the imposition and collection of taxes is complete and absolute, and is limited only by constitutional provisions. It is a question ofclear legal duty as declared by the statute, and not one ofequities between the different tax districts. The Legislature alone has the right to determine, within its legitimate discretion, all questions respecting the imposition and collection of taxes. Wadham's Estate, 249 App. Div. at 278-79,292 N.Y.S. at 108 (citations omitted). The County's present contentions that the County Guaranty was enacted in -12 response to purely local political concerns and that it possessed broad powers oflocal legislation as early as 1936 contrast sharply with the County's acknowledged inability in 1948 to enact the County Guaranty by local law. Put simply, the County's current arguments are unsupported by either the legislative history of the County Guaranty, or the history of the evolution of the County's home rule powers. POINT II THE OVERARCHING PRINCIPLES OF LAW APPLICABLE TO THIS CASE COMPEL THE CONCLUSION THAT THE COUNTY DOES NOT POSSESS THE POWER TO REPEAL THE COUNTY GUARANTY BY LOCAL LAW In determining the question ofwhether the County possesses the authority to repeal the County Guaranty by a local legislative enactment, the Court must be guided by the two overarching principles of law set forth below. A. Local Governments May Exercise Only Those Powers Delegated to Them by the State First, local governmental units may exercise only those powers delegated to them by the State. In Albany Area Builders Association v. Town ofGuilderland, 74 N.Y.2d 372, 547 N.Y.S.2d 627 (1989), the Court of Appeals stated: It is a familiar principle that the lawmaking authority of a municipal corporation, which is a political subdivision of the State, can be exercised only to the extent it has been delegated by the State. While the Legislature has retained authority in matters ofState concern, it has empowered municipalities to legislate in a wide range of matters -13 relating to local concerns. Albany Area Builders Association, 74 N.Y.2d at 376,547 N.Y.S.2d at, 628(citations omitted)( emphasis supplied). Similarly, in Seamanv. Fedourich, 16 N.Y. 2d 94, 101,262 N.Y.S.2d 444, 449 (1965), the Court of Appeals stated that "[i]t is axiomatic that local governmental units are creations of, and exercise only those power delegated to them by, the State (N.Y. Const., art IX, ss 1,2; Municipal Home Rule Law, ss 10, 11 )." B. The State Legislature in the County Charter Authorized the County to Enact Local Legislation Encompassing Only Matters of Local Concern Second, the powers of local lawmaking authority granted by the State Legislature to the County pursuant to the 1935 amendments to the 1894 State Constitution encompassed strictly matters oflocal concern, i.e., matters relating to the property, affairs, or government ofthe County. It did not include matters relating to taxation and education, areas of State concern. In Adler v. Deegan, 251 N.Y. 467, 167 N.E. 705 (1929), the Court ofAppeals interpreted the meaning of the words "property, affairs or government" as used in Article XII, § 2, the city home rule provision enacted in 1923 as an amendment to the 1894 Constitution. At issue in Adler was whether the State Legislature was authorized to enact the Multiple Dwelling Law, which was applicable to cities having -14 a population of 800,000 inhabitants or more, in the absence of action by two-thirds of both houses of the Legislature, upon an emergency home rule message from the Governor. Adler, 251 N.Y. at 467,470-71, 167 N.E. 705. The Court stated: Since 1894 the words 'property, affairs or government of cities' have become words of art, and were so used in the recent Home Rule Amendment, now known as article XII of the Constitution .... the fact remains that this court gave to these words, 'property, affairs or government ofcities,' a special limited meaning, and we would be unfair to the people of this State if we now changed their meaning. When the people put these words in article XII of the Constitution, they put them there with a Court of Appeals' definition, not that of Webster's Dictionary. * * * A division between State affairs and city affairs is plainly indicated, both by the Constitution and the City Home Rule Law passed pursuant to article XII, section 3, supra, to carry into effect the provision of that section.... The Constitution makes no attempt to define laws relating to the property, affairs or government of cities, nor has the Legislature, nor shall we at this time. One thing is clear. Under the carefully chosen language of the amendment a law may relate to or affect cities as subdivisions ofthe State or centers ofpopulation, without necessarily relating to the property, affairs or government ofsuch cities. The well recognized principle controls that alliegisialive power remains in the State Legislature, except as the Constitutions, State and Federal have limited such power. Adler, 251 N.Y. 467, 480, 167 N.E. 705 (emphasis supplied). In a concurring opinion in Adler, Judge Cardozo wrote: The Multiple Dwelling Act is aimed at many evils, but most of all it is a measure to eradicate the slum. It seeks to bring about conditions whereby healthy children shall be born, and healthy men and women -15 reared, in the dwelling of the great metropolis. To have such men and women is not a city concern merely. It is the concern ofthe whole State. Adler v. Deegan, 251 N.Y. at 467, 804, 167 N.E. 705. In City ofNew York v. Village of Lawrence, 250 N.Y. 429, 165 N.E. 836 (1929), the Court of Appeals addressed a challenge to a State law that defined a boundary line between the City ofNew York and the Town ofHempstead, the basis for such challenge being, as in Adler, that it was not passed on a message from the Governor declaring that an emergency exists, in violation of Article XII, § 2 of the Constitution. The Court stated with respect to the legislative powers granted to cities under the city home rule amendment to the Constitution: The Home Rule Amendment to the Constitution ... has enlarged the legislative powers of cities and restricted the legislative powers of the Legislature, within the field ofmatters relating to the property, affairs, and government ofcities. It has no operation outside ofthat field, nor has it changed the description ofthat field contained in the Constitution before the amendment. City ofNew Yorkv. Village ofLawrence, 250 N.Y. at 440, 165 N.E. at 839 (emphasis supplied). The County asserts that the Appellate Division's decision ishould be reversed because the Appellate Division "failed to recognize the broad local legislative authority uniquely accorded to Nassau County, and failed to give meaning to the numerous savings clauses in the Constitution, the Municipal Home Rule Law, and the -16 Charter." This argument ignores that however "unique" may have been the powers oflocallegislation accorded the County by the State Legislature's passage ofChapter 879 of the Laws of 1936 and Charter 618 of the Laws of 1937 (together referred to as "the County Charter"), such powers did not extend beyond matters of local concern, i.e., the property, affairs, and government ofthe County. As discussed infra at Point V, excluded from this definition are taxation and education. POINT III THE EVOLUTION OF THE COUNTY'S POWER TO ENACT LOCAL LAWS DEMONSTRATES THAT THE COUNTY WAS NOT GIVEN POWER TO REPEAL THE GUARANTY BY LOCAL LAW A. The 1935 Amendments to the 1894 State Constitution and the County Charter The County Charter was enacted in its original form by the State Legislature as Chapter 879 of the Laws of 1936. (AC. 85-105)4 Such enactment came about pursuant to 1935 amendments made to Article III, § 26(2) of the 1894 State Constitution. Article III, § 26(2) provided, in pertinent part, that: 2. The legislature shall provide by law for the organization and government of counties and shall provide by law alternative forms of government for counties except counties wholly included in a city and for the submission of one or more of such forms of governments to the electors residing in such counties. . . . Any such form of local 4 References to "AC. _ are to the Compendium of Sources cited in Appellants' Brief." -17 government shall set forth the structure ofthe county government and the manner in which it is to function. Any such form ofgovernment .. . may also provide for the exercise by the board ofsupervisors or other elective body ofpowers oflocal legislation and administration . .. 1894 N.Y. Const., art. III, § 26(2)(emphasis supplied). (AC. 1-2) Article III, § 26(4) expressly preserved to the State power to enact legislation in areas other than "the property, affairs or government" of a county, stating: Nothing herein contained shall impair or restrict the power of the legislature to enact laws relating to matters other than the property, affairs or government of such county. N.Y. Const., art. III, § 26(4). (AC. 3) By Chapter 879 ofthe Laws of 1936, Section 103(2), the Legislature provided that the board of supervisors "shall have the power to: (2) exercise powers oflocal legislation and administration as provided in section 26 of article three of the constitution ofthe state ofNew York." (AC. 86) Because, however, Article III, § 26 did not directly confer any local lawmaking authority on counties, further State legislation was required to enable the County to adopt local laws. This was accomplished by the passage of Chapter 618 of the Laws of 1937, by which Article I-A (consisting of Sections 150 through 162) was incorporated into the County Charter. (AC. 106-110) Section 150 provides: § 150. Power to adopt and amend local laws. 1. The board of supervisors of the county shall have powers of local legislation under -18 the provisions of section twenty-six of article three of the constitution and shall have power to adopt and amend loeallaws. (emphasis supplied). (AC. 107) Section 162 provides in pertinent part that: § 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 ofpowers of local legislation pursuant to the provisions of section twenty-six of article three of the constitution .... (AC.I09) That the State Legislature's passage of Section 103(2) of Chapter 879 of the Laws of 1936 was insufficient to confer upon the County any local legislative powers is made clear by the legislative history of Chapter 618 of the Laws of 1937. (RJC. 1 65) As discussed in a memorandum prepared by Nathan Sobel, counsel to the Governor, attached to the bill jacket for L. 1937, Chapter 618: The bill attempts for the first time to give to the County ofNassau local legislative powers. The Home Rule Amendment to the Constitution provides "that the Legislature shall provide for the exercise by the Board ofSupervisors ofpowers oflocallegislation." This provision, ofcourse, must be made in the county charter. This amendment to the Nassau County Charter, therefore, provides that: 'The Board of Supervisors of the county shall have powers of local legislation under the provisions of Section 26 of Article 3 of the Constitution and shall have power to adopt and amend loeallaws.' -19 (RJC. 6)(emphasis supplied).5 Upon approval by County voters, the County Charter became effective on January 1, 1938. (AC. 198) Insofar as Chapter 618 of the Laws of 1937 became law on May 25, 1937 (AC. 106), the County Charter incorporated the powers of local legislation set forth in Article I-A upon its effective date. B. The 1938 Constitution, Chapter 700 of the Laws of 1939. and the Nassau County Administrative Code Shortly after County voters approved the County Charter, a new State Constitution was adopted in 1938, effective January 1, 1939. (AC. 16-31) In pertinent part, the 1938 Constitution renumbered and amended the home rule provision for counties as Article IX, § 1 and 2. (AC. 4) On June 5, 1939, Chapter 700 of the Laws of 1939 was passed,. It amended Sections 150 and 162 of the County Charter to make reference to the newly enacted Constitutional county home rule provisions.6 (AC.119-120) As with its predecessor, Article IX, §§ 1 through 4 did not provide any 5 Mr. Sobel opined that even this bill was ineffective to grant local legislative powers to counties, citing Browne v. City ofNew York, 241 N.Y. 96, 149 N.E. 211 (1925). (RJC. 6-7) 6 Consistent with the Respondents' position that the authority to pass local legislation contained in the County Charter is insufficient to authorize the County to amend or repeal the Charter itself, (see below at Point IV), the amendments to Charter § 150 and 162 were accomplished by special State law. -20 Constitutional grant oflocallawmaking power to counties but, rather, authorized the State Legislature to do so. In pertinent part, Article IX, § 2-(b) provided that any alternative form ofgovernment for counties provided for by the legislature "may also provide for the exercise by the board of supervisors or other elective governing body of powers oflocallegislation and administration." (AC. 19) Thus, neither the 1938 Constitution nor the amendments to the County Charter effectuated by the passage of Chapter 700 of the Laws of 1939 conferred upon the County any further powers oflocallegislation than those previously granted in 1937 by Chapter 618 ofthe Laws of 1937, i.e. Article I-A of the County Charter. After the adoption of the County Charter, the Nassau County Administrative Code was enacted by the State Legislature on April 12, 1939 as Chapter 272 of the Laws of 1939. (AC. 111-119) The purpose of such law was to consolidate the numerous special State laws and local laws relating to the County and to harmonize them with the County Charter (JR. 701-02). One such special law was the Nassau County Tax Act, enacted by the State Legislature as Chapter 541 ofthe Laws of 1916. (AC. 51-65) The Administrative Code did not impact the County's local lawmaking powers. C. The 1963 Constitution and the Municipal Home Rule Law In 1963, a new State Constitution was enacted. It included an amended home -21 rule provision at Article IX, § 2. In Article IX, § 2(a) the State Legislature was mandated to "provide for the creation and organization oflocal governments in such manner as shall secure to them the rights, powers, privileges and immunities granted to them by this constitution." This was accomplished with the passage of the Municipal Home Rule Law in 1964. In Article IX, § 2( c), a direct constitutional grant oflocallawmaking authority was given to local governments as follows: c. in addition to powers granted in the statute of local governments of any other law, (i) every local government shall have power to adopt and amend local laws not inconsistent with the provisions ofthe 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 ofsuch local government, except to the extent that the legislature shall restrict the adoption ofsuch a local law relating to other than the property, affairs or government of such local government. N.Y. Const., art. IX, § 2( c ). The home rule provisions in the 1963 Constitution represent -- for the first time -- any grant of authority to the County to adopt and amend local laws relating to matters "whether or not they relate to the property, affairs or local government." This grant contains two (2) provisos, however: (1) that the local law is not subject to any restriction the State Legislature might make on the adoption of such a local law; and -22 (2) that the local law relates to one of 10 (ten) subjects enumerated. POINT IV THE EVOLUTION OF THE COUNTY'S POWER TO ENACT CHARTER LAWS DEMONSTRATES THAT THE COUNTY WAS NOT GIVEN POWER TO REPEAL THE GUARANTY BY CHARTER LAW A. The County Charter Law, the 1963 Constitution, and the Municipal Home Rule Law While the County claims the Charter as enacted in 1937 grants it unbridled powers of local legislation, there is no genuine dispute that such powers did not encompass the power to amend its own charter.7 Only in 1959, pursuant to amendments to the State Constitution adopted by the people in 1958, did the State Legislature empower counties to adopt, amend, or repeal charters by local law. This law was entitled the County Charter Law and was codified in former Article 6-A of the County Law. In 1963, when the current version of Article IX of the State Constitution was enacted, it continued the grant ofauthority to the State Legislature to pass legislation empowering counties to adopt, amend, or repeal alternative forms of county government by local law, specifically, N.Y. Constitution, Article IX, § 7 While the Second Department held in Konz v. Bedell, 273 AD.2d, 75 N.Y.S.2d 18 (1947) that a local law amending the County Charter to strike salary limitations for certain County officers was valid because it related to a matter of "local legislation," the court cited no authority for its holding. Konz does not, in any event, support the proposition that the County Charter authorizes the County to pass local laws amending the Charter which supercede State laws relating to matters of State concern, as LL No. 18-2010 does. -23 1(h)(1). Article IX, § 1 (h)(1) provides in pertinent part that "[ c ]ounties ... shall be empowered by general law ... to adopt, amend or repeal alternative forms ofcounty government provided by the legislature or to prepare, adopt, amend or repeal alternative forms of their own." N.Y. Const., art. IX, § 1(h)(1). The State legislature adopted Municipal Home Rule Law § 33 to implement this, with limitations on such powers being provided for in Municipal Home Rule Law § 34. The Attorney General has opined that if an administrative code by terms of its provisions falls within the meaning of a county charter as set forth in Municipal Home Rule Law § 33(2), the provisions of the Constitution and State law applicable to charters will apply to it also. 1999 N. Y. Op. Atty. Gen. (Inf) 1026. Municipal Home Rule Law § 33(2) states that "[a] county charter shall set forth the structure of the government and the manner in which it is to function." As noted above, the Nassau County Administrative Code was enacted in 1939 as a special State law and included provisions relating to taxation and assessment. (AC. 114-118) To the extent that the Nassau County Administrative Code provides for the functioning ofthe power to assess real property in Nassau County, including the manner in which to remedy any errors associated therewith, it sets forth "the structure of the government and the manner in which it is to function" within the meaning of -24 Municipal Home Rule Law § 33(2). See also New York Telephone Company v. Supervisor ofTown ofNorth Hempstead, 77 A.D.3d 121,125,908 N.Y.S.2d401, 404 (2d Dep't 201 O)(stating that the Administrative Code was enacted as a "codification and restatement of the existing law with relation to the administration of County affairs [L. 1939, CH. 272])." Accordingly, the Administrative Code is subject to the charter adoption, amendment and repeal provisions in Municipal Home Rule Law § 33 and the limitations and restrictions thereon in Municipal Home Rule Law § 34(3)(a), (b) and (c). POINT V THERE IS NO AUTHORITY IN THE COUNTY CHARTER FOR THE FOR THE REPEAL OF THE COUNTY GUARANTY BY LOCAL LAW As discussed above in Point III, Section A, the 1935 amendments to the 1894 Constitution permitting counties to have powers of "local legislation and administration" encompassed just that, powers over local matters. The County Charter that the State Legislature enacted pursuant to such grant of authority circumscribed the County's power to enact local laws to matters relating to its "property, affairs or government." This excluded matters ofState concern, including taxation and education, and the amendment of the County Charter itself. The attempted repeal of the County Guaranty by LL No. 18-2010 implicates all of these -25 areas. Thus, it is outside the scope ofthe powers granted to the County in the County Charter. That the County Charter did not provide a source of right to the County to legislate in the areas of taxation or education, or to amend or repeal its own Charter, is demonstrated by two pieces ofState Legislation enacted subsequent to the January 1, 1939 effective date ofthe County Charter. The first is Chapter 700 ofthe Laws of 1939, which amended the County Charter to substitute references to Article III, § 26 of the 1935 amendments to the 1894 Constitution with references to Article IX, § 2 of the 1938 Constitution. The second is the County Guaranty itself, which was adopted pursuant to Chapters 98 and 851 of the Laws of 1948.8 Because the County Charter does not provide the County with a source ofright to enact LL No. 18-2010, the "savings clauses" relied upon by the County, including Article IX, § 3 ofthe 1938 Constitution, Article § IX, § 3(b) ofthe 1963 Constitution, and Municipal Home Rule Law § 35(2), have no pertinence to the determination of this case. These clauses cannot "save" any powers which never existed in the first place. 8 While the County Guaranty was enacted with the recommendation of the County (JR. 609-10), the legislative history does not indicate that it was enacted pursuant to a home rule request or a certificate of necessity by the governor under Article IX, § l-(b) of the 1938 Constitution (Ae. ·17-18). -26 A. The County Charter Is Not a Source of Right to the County to Legislate with Respect to Taxation There is no dispute that the attempted repeal ofthe County Guaranty by LL No. 18-2010 alters the manner in which property tax refunds may be allocated between the County and the school districts, special districts, towns, and other municipal entities therein. Thus, it clearly relates to taxation. That taxation is a matter ofState concern regarding which local governments cannot legislate absent an express delegation is a proposition that cannot be disputed. City o/New Yorkv. State o/New York, 94 N.Y.2d 577, 590-91, 709 N.Y.S.2d 122, 127-28 (2000)(stating that power to tax rests with State Legislature and that, by enacting enabling law for commuter tax pursuant to home rule message in 1966, Legislature did not surrender its power to legislate further in this area); Sonmax, Inc. v. City o/New York, 43 N.Y.2d 253, 257, 401 N.Y.S.2d 17, 175 (1977)(stating that all taxing power is vested in State Legislature but may be delegated); County Securities, Inc. v. Seacord, 278 N.Y. 34, 15 N.E.2d 179 (1938); Weber v. City o/New York, 18 Misc. 2d 543, 195 N.Y.S.2s 269 (Supreme Ct., New York Cty. 1959)(stating that since enactment oftax laws has always been exclusively a state function whose delegation to city for local purposes must be made in express tenns by legislature, enabling act by State Legislature granting power to city to enact tax law is essential precondition to its exercise). -27 In Secord, this Court was presented with the question of whether a local law purporting to amend the City ofNew Rochelle's charter by providing that "liens for unpaid taxes might be sold to the person making the best offer and foreclosed by the purchaser by action in the Supreme Court" was valid. Seacord, 278 N.Y. 34, 15 N.E.2d 179 (1938). The Court stated that: The power oftaxation, being a State function, the delegation ofany part of that power to a subdivision of the State must be made in express terms. It cannot be inferred. * * * Nowhere in [the City Home Rule Law] or any other statute can be found an express grant of power to cities to enact local laws which have the effect ofchanging the method ofcollection of taxes provided for in the original charter and the general Tax Law (Cons. Laws, ch. 60) Seacord, 278 N.Y. at 38, 15 N.E.2d at 179 (citations omitted). There is no basis on which to conclude that the State Legislature, when it enacted the County Charter, expressly delegated to the County broad authority to legislate in the area of taxation. Moreover, and more importantly, there is certainly no express authority in the County Charter permitting the County to enact local legislation prescribing the manner in which property tax refunds may be allocated between the County and the school districts therein (arms of the State) and/or any other municipal entities. Indeed, this is one reason why the County Guaranty was -28 required to be enacted by special State Law in 1948. At page 40 of its Brief, the County asserts that, in the County Charter, the State Legislature delegated to it "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." (emphasis supplied). A review of the provisions cited by the County, however, demonstrates that not one ofthem expressly delegates to the County any power to enact local laws relating to "tax refunds and who should be obligated to pay them." Indeed, according to the County itself, the only provisions applicable to "tax refunds and who should be obligated to pay them" are contained in the State-enacted Administrative Code (the predecessor ofwhich was a special State law, the Nassau County Tax Act), as amended by the special State laws which are known as the County Guaranty. Among the provisions cited by the County as a source of its right to enact LL No. 18-2010 is Charter § 2201, but it grants no such authority. Section 2201 merely states that: The board of supervisors may provide by ordinance a plan, not inconsistent with the terms ofthis act, for the assessment ofproperty for tax purposes, the making of appropriations, the period for which appropriations are made, the levy of taxes, the collection of taxes, the accrual ofpenalties, the sale oftax liens and the foreclosure thereofwith reference to the dates at which each of the steps above set forth shall take place. Until the passage ofsuch an ordinance, the provisions ofthe -29 laws ofthis 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. (emphasis supplied). Initially, it is unclear if the County ever enacted an ordinance of the type described in Section 2201. Secondly, this provision does not grant the County plenary authority to enact a local law relating to any of these matters, but only an ordinance to make a plan with respect to the matters itemized. By definition set forth in Charter § 103(5), ordinances are "for the purpose of making effective any ofthe provisions ofthis act and to carry out allpowers conferred on the county or the board of supervisors by any other law ..." (emphasis supplied). The County has no power to enact ordinances which confer powers of legislation upon itself. B. The County Charter Is Not a Source of Right to the County to Enact Local Legislation Which Affects the Maintenance, Support, and Administration of Education Within the County The attempt to repeal the County Guaranty by LL No. 18-2010 clearly impacts the maintenance, support, and administration of education within Nassau County. When the County Guaranty was enacted by the State Legislature in 1948, it relieved school districts and their residents from responsibility for defending and paying claims based on the County's erroneous assessment of real property. This directly relates to and impacts, in a very substantial way, the manner in which school districts -30 provide for and fund the educational needs of district students. The Guaranty's repeal, by substantially reducing this funding, would have a severe detrimental impact on children attending public schools in Nassau County. It is beyond question that the home rule powers granted to the County in the County Charter at no time extended to the area ofeducation, a matter well recognized at that time to be one of State concern. Article XI, § 1 of the 1938 Constitution provided, as does the current version, that "[ t ]he legislature shall provide for the maintenance and support ofa system of free common schools, where all the children of this state may be educated." In Matter ofDivisich v. Marshall, 281 N.Y. 170, 173,22 N.E.2d 327 (1939), the Court of Appeals stated "[i]fthere be one public policy well-established in this State it is that public education shall be beyond control by municipalities and politics. Similarly, in Gunnison v. Board ofEduc. ofCity ofNew York, 176 N.Y. 11,68 N.E. 106 (1903), the Court of Appeals stated that: We have seen that the policy of this state for more than half a century has been to separate public education from all other municipal functions and entrust it to independent corporate agencies of its own creation, such as school districts and boards of education. Gunnison, 176 N.Y. at 23, 68 N.E. 106. And in Matter ofFuhrmann v. Graves, 235 N.Y. 77, 138 N.E. 743 (1923), the Court -31 of Appeals stated: The intent of the legislature in enacting the Education Law is clear. It imposes upon boards of education as separate corporate bodies representing the state, the responsibility of furnishing an efficient system ofpublic education, and in this respect they are not subject to or controlled by the city authorities. In order to enable such boards to properly discharge the duties thus imposed, they are clothed with authority to act independently of the city authorities. Matter of Fuhrmann v. Graves, 235 N.Y. at 82, 138 N.E. 743(citations omitted)( emphasis supplied). It is thus clear that, in providing the County "powers of local legislation and administration" in its Charter, the State Legislature never intended to authorize the County to enact local laws which --like LL No. 18-2010 -- would have a far reaching impact on the maintenance, support, and administration of education within Nassau County, a State function over which the Legislature never ceded control. POINT VI THE 1963 CONSTITUTION AND THE MUNICIPAL HOME RULE LAW PROHIBIT THE REPEAL OF THE GUARANTY BY LOCAL LAW A. Article IX, §2(c)(ii)(8) of the State Constitution The Appellate Division correctly concluded that "article IX, section 2 of the New York Constitution only authorized local laws relating to the levy, collection, and administration of local taxes that are consistent with State laws, both general and -32 special." (JR. xxi) Article IX, § 2( c )(ii)(8) provides that, in addition to the powers granted to local governments in any other law: 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 of 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 oflocal taxes authorized by the legislature and of assessments for local improvements, consistent with laws enacted by the legislature. N.Y. Const., art. IX, § 2(c)(ii)(8)(emphasis supplied). Under Article IX, § 2( c )(ii)(8), the County was given unprecedented power to enact a local law relating to the "[t]he levy, collection and administration of local taxes authorized by the legislature and of assessment for local improvements," whether or not the local law related to its property, affairs, or government, provided the State Legislature did not restrict the adoption of such law and the law was "consistent with laws enacted by the legislature." It is respectfully submitted that the constitutional grant of power to local governments to enact local laws relating to "[t]he levy, collection and administration of local taxes authorized by the legislature and of assessment for local -33 improvements,,,9 whether or not they "relate to the property, affairs, or government ofsuch local government," reflects the State Legislature's recognition that, de facto, the power to levy, collect and administer local taxes implicates matters of State concern. By this provision, however, the State delegated to local governments, under the extremely limited circumstances described, the power to pass legislation on this subject. Clearly, one of the primary issues on this appeal is the meaning ofArticle IX, § 2( c )(ii)(8) and whether it permits the County to enact local laws relating to the levy, collection and administration of taxes that are inconsistent with special State laws, such as the County Guaranty. The County argues that the Appellate Division misinterpreted Article IX, § 2(c)(ii)(8), stating: In finding that the 1963 amendments prohibits 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 meaningless, employing a construction that had no support in a single cited case or otherwise. (Appellant's Brief, p. 56) 9 Article IX, § 12 of the 1938 Constitution had previously given a similar authority to cities, but not counties. Article IX, § 12 provided that "[e]very city shall also have the power to adopt and amend local laws not inconsistent with this constitution and laws of the state and whether or not such laws relate to the property, affairs or government in respect to the following subjects ... the collection and administration of local taxes authorized by the legislature." (AC. 27)(emphasis supplied). No similar grant of power was ever given to the County in the 1938 Constitution, its predecessor, the County Charter, or any other special State law. -34 In fact, the Appellate Division's conclusion that "article IX, section 2 of the New York Constitution only authorized local laws relating to the levy, connection, and administration oflocal taxes that are consistent with State laws, both general and special" (JR. xxi) follows well established rules of statutory construction. Statutes § 98(a) provides that "[all parts of a statute must be harmonized with each other as well as with the general intent of the whole statute, and effect and meaning must, if possible, be given to the entire statute and every part and word thereof." Statutes § 231 states that ~'[i]n the construction ofa statute, meaning and effect should be given to all of its language, if possible, and words are not to be rejected as superfluous when it is practicable to give to each a distinct and separate meaning." See also Albano v. Kirby, 36 N.Y.2d 526, 369 N.Y.S.2d 655 (l975)(stating that enacting body will be presumed to have inserted every provision for some useful purpose). To interpret Article IX, § 2( c )(ii)(8) in the manner suggested by the County would render the words "consistent with law8s enacted by the legislature," which are also contained in Article IX, § 2( c )(ii)( 4) but no other subsection, completely meaningless. In addition, the Appellate Division's interpretation of Article IX, § 2( c)(ii)(8) is supported by the New York State Department ofState, which has a long history of providing guidance to municipalities in various areas ofmunicipal law, including the enactment of local laws and charter revisions. In its publication "Adopting Local -35 Laws in New York State" (1998) (RJC. 208-38), the Department of State opined as follows with respect to the Constitutional restrictions set forth in Article IX, § 2( c )(ii)( 4) and (8): The enumerated powers in Article IX, Section 2, also contain various express restrictions .... The fourth and eighth enumerated powers, relating to the incurring of obligations and the levy, collection and administration of local taxes and assessments for local improvements, in addition to being limited grants, contain a further restriction to the effect that local laws relating to the issuance of evidences of indebtedness and the levy, collection and administration of local taxes and assessments for local improvements must be consistent with laws enacted by the Legislature. In other words, local laws enacted pursuant to these provisions must be consistent with any law enacted by the legislature whether general or special. (RJC. 214)(emphasis supplied). B. Municipal Home Rule Law § 34(3)(a) Municipal Home Rule Law § 34(3)(a) states: 3. Except in accordance with provisions of this chapter or with other laws enacted by the legislature, a county charter or charter law shall not supercede any general or special law enacted by the legislature: a. Which relates to the imposition,judicial review or distribution of the proceeds of taxes or benefits assessments. Municipal Home Rule Law § 34(3)(a). The County Guaranty patently "relates to the ... distribution of the proceeds of taxes or benefits assessments" within the meaning ofMunicipal Home Rule Law -36 § 34(3)(a) in that it retlects a State legislative detennination that school and other districts within the County are entitled to retain any real property taxes distributed to them, regardless of any assessment errors made by the County. LL No. 18-2010 is a charter law that repeals the County Guaranty, a special State law. Accordingly, LL No. 18-2010 constitutes a charter law that impennissibly supercedes a special State law relating "to the ... distribution ofthe proceeds oftaxes or benefits assessments" in violation ofMunicipal Home Rule Law § 34(3)(a). LL No. 18-2010 also violates that aspect of Municipal Home Rule Law § 34(3)(a) which prohibits the enactment of a charter law that supercedes a State general or special law relating to"the ... judicial review ... of the proceeds of taxes or benefits assessments," as it supercedes Real Property Tax Law §§ 708(3) and 712(2-a). By Chapter 503 of the Laws of 1996, Real Property Tax Law § 708(3) was amended specifically to except Nassau County taxpayers who commence judicial proceedings challenging real property assessments from the requirement that they notify school districts of such proceedings and/or serve papers commencing such proceedings upon school districts. By the same legislation, Real Property Tax Law § 712(2-a) was amended to prohibit school districts in Nassau County from being pennissive intervening parties in such proceedings. -37 The bill jacket pertaining to Chapter 503 of the Laws of 1996 (JR. 638-655) illuminates the meaning ofthe 1996 amendments to Real Property Tax Law §§ 708(3) and 712(2-a). As set forth in a letter from Senator Joseph R. Holland to Michael C. Finnegan, Counsel to the Governor: Under current law, school districts are required to be a party in a tax certiorari proceeding. Pursuant to this bill, school districts no longer have mandatory status, but instead have intervener [ sic] status. This has been done at the request of the school districts themselves, in recognition of the fact that it would be time consuming and expensive for schools to be made necessary parties to all tax certiorari proceedings, both large and small. In conjunction with the above, Nassau and Suffolk school districts have been exempted from the intervenor status provisions altogether since school districts in these counties are not respons ible for tax certiorari awards. (JR. 640)( emphasis supplied). A memorandum prepared by the State of New York Office of Real Property Services similarly explains the 1996 amendments to Real Property Tax Law §§ 708(3) and 712(2-a) as follows: The most offensive problem with chapter 693 was its amendment of RPTL § 708, to provide that school districts would automatically be deemed parties to an Article 7 proceeding, while at the same time leaving unchanged language in the same section stating that a school district is not a party. This instant bill remedies that defect and clarifies the procedure for service on a school district, by providing that school districts must be served by certified mail and that failure to comply with the requirement will result in dismissal of the petition "absent good cause shown". No service would be made on school districts in Nassau and Suffolk Counties because in these counties, the school districts do -38 not pay tax certiorari awards. It also provides (by adding new subdivisions 2-a and 2-b to section 712) that a school district may intervene in an Article 7 proceeding by serving an answer or a notice of appearance. Again, school districts in Nassau and Suffolk Counties are not affected. (JR. 645) (emphasis supplied). Local Law No. 18-2010 directly conflicts with Real Property §§ 708(3) and 712(2-a) in that it requires real property taxpayers who file assessment challenges to provide the school districts in which they reside with copies of the petition, notice, and any other papers served, thus effectively making school districts in Nassau County parties to such proceedings. In pertinent part, Local Law No. 18-2010 adds a new Section 6-17.3 to the Nassau County Administrative Code which provides as follows: The petition and notice for review of an assessment on the County assessment roll as provided in section 6-17-2 ofthe administrative code must be served within thirty days after the filing ofthe certified copy of the completed and verified County assessment roll in the office of the County Assessor as required by section 6-17.0 of the administrative code. In any [such] proceeding ... three copies of the petition, notice and any other papers in connection therewith must be served upon the County Assessor or upon the chiefclerk ofthe County Assessor andone copy ofsaidpetition and notice shall be mailed by petitioner within ten days from the date of service thereof as above provided to the superintendent ofschools ofany school district within which any part ofthe real property on which the assessment to be reviewed is located." (JR. 58)( emphasis supplied). Thus, Administrative Code § 6-17.3 directly conflicts -39 with, and therefore supercedes, New York Real Property Tax Law §§ 708(3) and 712(2-a), which are special State laws that "[relate] to the ... judicial review ... of the proceeds oftaxes or benefit assessments" within the meaning ofMunicipal Home Rule Law § 34(3)(a). The confli ct between the new Administrative Code § 6-17.3 and Real Property Tax Law §§ 708(3) and 712(2-a) directly impacts real property taxpayers who wish to file assessment challenges. They are now placed in the untenable position of complying with the new Administrative Code § 6-17.3 and violating Real Property Tax Law §§ 708(3) and 712(2-a), or complying with Real Property Tax Law §§ 708(3) and 712(2-a) and violating the new Administrative Code § 6-17.3. This is precisely the type of dilemma that Municipal Home Rule Law § 34(3)(a) was intended to avoid. C. Article XI. § 1 and IX. § 3(a)(1) of the State Constitution and Municipal Home Rule Law §§ 11(1)(c) and 34(3)(b) Article XI, § 2(a) of the State Constitution states that: The legislature shall provide for the creation and organization of local governments in such manner as shall secure to them the rights, powers, privileges and immunities granted to them by this constitution. N.Y. Const., art. IX, § 2(a)(emphasis granted). These "rights, powers, privileges and immunities" did not extend to the area -40 ofeducation. In Article IX, § 3 (a)(1 ) ofthe Constitution, the State expressly reserved to itself the power to maintain, support, and administer public education, and prohibited the restriction or impairment thereof by local legislative enactments as follows: (a) Except as expressly provided, nothing in this article shall restrict or impair any power of the legislature in relation to: (1) The maintenance, support or administration of the public school system, as required or provided by article XI ofthis constitution, or any retirement system pertaining to such public school system. N.Y. Const., art. IX, § 3(a)(1). Thus, the home rule powers granted to local governments in Article IX, § 2 did not bestow upon them any authorization whatsoever to enact local laws pertaining to or affecting the maintenance, support, or administration of education. As the Court of Appeals stated in Matter ofthe Board ofEducation ofthe City School District of the City ofNew York v. City ofNew York, 41 N.Y.2d 535, 394 N.Y.S.2d 148 (1977): Education is expressly made a State responsibility (N.Y. Const. art. XI, s 1), and is explicitly exempted from home rule restriction (art IX, s 3, subd. (a), par. (1 )). We have held that education is a State concern (Lanza v. Wagner, 11 N.Y.2d 317, 326, 229 N.Y.S.2d 380, 386, 183 N.E.2d 670, 674), and that [State] legislation dealing with matters of State concern even though of localized application and having a direct effect on the most basic of local interests does not violate the constitutional home rule provisions. (e.g., Wambat Realty Corp. v. State of New York, 41 N.Y.2d 490, 393 N.Y.S.2d 949, 362 N.E.2d 581; Robertson v. Zimmermann, 268 N.Y. 52, 196 N.E. 740; Adler v. -41 Deegan, 251 N.Y. 467, 167 N.E.705; City of1\Jew York v. Village of Lawrence, 250 N.Y. 429, 165 N.B. 836). Matter ofthe Board ofEducation ofthe City School District ofthe City ofNew York, 41 N.Y.2d at 542-43,394 N.Y.S.2d at 154. In Bugeja v. City ofNew York, 24 A.D.2d 151,266 N.Y.S.2d 80 (2d Dep't 1965), afJ'd, 17 N.Y.2d 606,268 N.Y.S.2d 564 (1996), the Second Department held that payment by New York City of its mandatory pension or retirement obligations is a matter ofState concern and that State legislation in this area is not subject to the home rule article ofthe Constitution. Bugeja, 24 A.D.2d at 152,266 N.Y.S.2d at 81. The court reasoned "[b ]ecause civil servants deal directly with such areas of undoubted state concern as education, public health, housing and transportation, the continuance of a sound civil service system is but an integral aspect of the state's interest in those fields. Bugeja, 24 A.D.2d at 152,266 N.Y.S.2d at 82. Consistent with this, the courts have routinely invalidated local laws that infringe upon the State's Legislature's authority over education. Matter ofBoard of Cooperative Educational Services ofNassau County v. Gaynor, 33 A.D.2d 701, 306 N.Y.S.2d 216 (2d Dep't 1969)(holding that Town could not, by local ordinance, prevent location of school within its borders); Board ofEduc. ofUFS.D. Number Four ofthe Town ofGreece v. Board ofEduc. ofCity ofRochester, 23 A.D.2d 805, -42 258 N.Y.S.2d 194 (4th Dep't 1965)(holding that local law purporting to tenninate right of school children residing in unannexed portions of local school districts to attend Rochester public schools without payment of tuition was local law which impennissibly superceded state law); Reuss v. Katz, 43 Misc. 2d 921,922-23,252 N.Y.S.2d 546 (Supreme Ct., New York Cty. 1964), aff'd, 21 A.D.2d 968, 252 N.Y.S.2d87.Seealso 1983N.Y. Op.Atty. Gen. (Inf) 1033(opining that county local law which imposed fee on individuals seeking certificate of residency for admission to community college in another county superceded Education Law § 6305(3), which made no provision for imposition of such fee, and impennissibly encroached upon State's authority over education and admission ofnon-resident students to community colleges). Municipal Home Rule Law § § 11 (1)( c) carries into effect the Constitutional proclamation in Article IX, § 3 (a)(1 ) that the State Legislature's power to legislate in the area of education shall continue unimpaired: 1. Notwithstanding any provision of this chapter, the [local] legislative body shall not be deemed authorized by this chapter to adopt a local law which supercedes a state statute, if such local law: c. Applies to or affects the maintenance, support or administration ofthe educational system in such local government, or a teachers' pension or retirement system therein. Municipal Home Rule Law § 11(1)(c). -43 The County Guaranty represents a public policy detennination by the State Legislature regarding the maintenance, support, and administration ofpublic schools in Nassau County. Specifically, individual school districts in Nassau County and their taxpayers should be held hannless from all liability resulting from the County's erroneous assessment of real property, and the educational opportunities afforded to children ofschool district taxpayers should not be diminished because ofany failure by the County to correctly assess real property. By enacting LL No. 18-2010 and superceding the County Guaranty, the County overturned this important State public policy, in violation ofMunicipal Home Rule Law § 11(1)(c). Municipal Home Rule Law § 34(3)(b) carries Article IX, § 3(a)(1) into effect by providing: 3. Except in accordance with provisions of this chapter or with other laws enacted by the legislature, a county charter or charter law shall not supercede any general or special law enacted by the legislature: b. Insofar as it relates to the educational system in the county or to school districts therein, except that functions, powers or duties assigned to units oflocal government or to agencies or officers thereof outside the educational system may be transferred to other units of local government, agencies or officers as authorized by this article. Municipal Home Rule Law § 34(3)(b). When the Legislature enacted the County Guaranty as a special State law in 1948, it made a public policy detennination that school and other local districts -44 within Nassau County should be immune from the financial consequences caused by the County's assessment errors. Instead, the financial repercussions ofthe County's errors would be spread across and borne equally by all County taxpayers, not the taxpayers residing within any particular school district. By shifting financial and administrative responsibility for the County's assessment errors onto individual school districts and their residents, LL No. 3-2010 undermines this State policy, significantly impacting school funding and the educational opportunities available to Nassau County school children. Thus, LL No. 18-2010 is a charter law which supercedes a special State law relating to the educational system in the county and violates Municipal Home Rule Law § 34(3)(b). D. Municipal Home Rule Law § 34(3)(c) Municipal Home Rule Law §§ 34(3)(c) states: 3. Except in accordance with provisions of this chapter or with other laws enacted by the legislature, a county charter or charter law shall not supercede any general or special law enacted by the legislature: c. Which requires that specified functions of government be performed or financed by units of local government, except that any of such functions may be transferred to other units of local government, agencies or officers as authorized by this article. Municipal Home Rule Law § 34(3)( c). There is also no question that the County Guaranty "requires that specified -45 functions of government be perfonned or financed by units of local government" within the meaning of Municipal Home Rule Law § 34(3)(c). Specifically, the Guaranty requires the County to perfonn any and all functions of whatsoever kind relating to the defense and payment of claims based upon the County's erroneous assessment ofreal property. LL No. 18-2010 supercedes the County Guaranty insofar as it now requires school districts to perfonn a number of functions relating to the administration and payment of such claims, and it shifts the costs ofthese functions to taxpayers of various individual school districts. Municipal Home Rule Law § 34(3)( c) clearly prohibits the County from enacting a charter law -- LL No. 18-2010 -- that supercedes the County Guaranty, a special State law requiring the County to perfonn and finance specified governmental functions. POINT VII LOCAL LAW NO. 18-2010, IF NOT INVALID, IS NEVERTHELESS INOPERABLE BECAUSE OF THE COUNTY'S FAILURE TO CONDUCT A REFERENDUM Even assuming arguendo the Court were to conclude that the County was authorized to enact LL No. 18-2010, it should nevertheless order the County to conduct a mandatory referendum pursuant to Municipal Home Rule Law § § 34(3)( c) and 33(7)(b). Municipal Home Rule Law § 34(3)( c) contains an exception to the prohibition -46 against the enactment of charter laws that supercede general or special laws. This exception permits the enactment of a charter law that transfers governmental functions from one unit oflocal government to another provided that such transfer is approved by a majority of voters at a mandatory referendum held pursuant to Municipal Home Rule Law § 33(7)(b). See also N.Y. Const., art. IX, § 9(h)(1). While the Respondents submit that the County had no authority whatsoever to enact LL No. 18-2010, in the event the Court concludes that it did, Municipal Home Rule Law § 34(3)( c) nevertheless requires the holding ofa referendum before LL No. 18 2010 can become operable. Municipal Home Rule Law § 33(7)(b) subjects to mandatory referendum any charter law "proposing an amendment or repeal of one or more provisions [of a county charter] which would have the effect oftransferring a function or duty" ofthe County. Municipal Home Rule Law § 33(7)(b). It provides that, upon legislative approval of a charter law amending or repealing a provision of a county charter that has the effect of transferring a function or duty of the County: it shall not become operative unless and until it is approved at a general election or at a special election, held in the county by receiving a majority of the total votes cast thereon (a) in the area of the county outside of cities and (b) in the area of the cities of the county, if any, considered as one unit. Municipal Home Rule Law § 33(7)(b). See also N.Y. Const., art. IX, § 9(h)(1). Such -47 a referendum is required to take place "at the next general election or at a special election, occurring not less than sixty days after the adoption thereofby" the County Legislature. Municipal Home Rule Law § 33(7)(b). As LL No. 18-2010 has never been submitted to County voters at a County-wide referendum and approved by a majority of such voters, it is inoperable and has no legal effect -48 CONCLUSION For the reasons set forth above, the findings and conclusion of the Appellate Division that the County's repeal ofthe County Guaranty by LL No. 18-2010 violated Article IX, § 2( c )(ii)(8) of the State Constitution and Municipal Home Rule Law § 34(3)(a) should be affirmed. Additionally, the Appellate Division correctly concluded that the County Charter does not provide a source of right to the County to repeal the County Guaranty by local law and, therefore, that any savings clauses in the County Charter, the State Constitution, the Municipal Home Rule Law, and/or other provisions of law are ofno effect and preserve no rights to the County in this matter. Dated: New York, New York August 6, 2013 RICHARD E. CASAGRANDE Attorney for Plaintiffs-Appellants in Proceeding No.2 By: CATHERINE V. BATTLE OfCounse] 52 Broadway, 9th Floor New York, NY 10004-1614 (212) 533-6300 NYC Legal: -49