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’ REPLY 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 September 19, 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 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. i00112522-2 TABLE OF CONTENTS TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 COURT OF APPEALS JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 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. . . . . . . . . . . . . . . . . . 11 A. Respondents’ Attempt To Subvert The Express Text Of The Local Legislation Act Through Legislative History Analysis Of The 1937 Amendments Is Legally And Factually Meritless. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 B. The Three Cases Cited By Respondents, Browne v. City New York, Clark v. La Guardia, and County Securities v. Seacord All Concerned General Laws, Not Special Law, And All Three Have Been Expressly Abrogated. . . . . . . . . . . . . . . . . . . 24 C. Respondents’ Reliance on People v. Westchester County Is Misplaced. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 D. Respondents’ Argument That Taxation Is A Preempted State Function Overlooks The Specific Powers Over Taxation Granted To The County. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 E. Respondents’ Contention That The State Legislature Did Not Delegate Local Powers of Taxation Until The Amendments To The 1963 Constitution Is False.. . . . . . . . . . . . . . . 36 ii00112522-2 TABLE OF CONTENTS F. Respondents Offer No Analysis Of The Alternative County Government Provisions Of The Constitution. . . . . . . . . . . . 38 G. Respondents Also Fail To Overcome The Express Supersession Powers Given To Nassau County.. . . . . . . . . . . . . . . . 40 POINT II IN ADDITION, ARTICLE IX, §2(C)(II) OF THE CURRENT CONSTITUTION AUTHORIZES THE COUNTY TO ENACT THE COMMON SENSE ACT AS A MATTER OF LAW; MOREOVER, MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(8) EXEMPTS LOCAL LAWS RELATED TO PROPERTY TAXES FROM HAVING TO BE CONSISTENT WITH ANY OTHER LAWS.. . . . . . . . . . . . . . . . . . . . . . 42 POINT III RESPONDENTS’ REMAINING CHALLENGES TO THE COMMON SENSE ACT ARE ALL MERITLESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 A. Respondents’ Arguments Based on MHRL §34 Are Meritless. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 B. Respondents Education-Based Arguments Are Meritless. . . . . . . . . 51 C. The County Guaranty Was Set Forth Exclusively In The Nassau County Administrative Code, Not The Charter. . . . . . . . . . . 54 D. A Referrendum Is Not Required.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 E. Respondents’ Remaining Arguments Are Frivolous. . . . . . . . . . . . . 58 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 iii00112522-2 TABLE OF AUTHORITIES 41 Kew Gardens Road Assoc. v. Tyburski, 70 N.Y.2d 325, 520 N.Y.S.2d 544 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . 35, 47 Adler v. Deegan, 251 N.Y. 467 (1929).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 52 Astwood v. Cohen, 291 N.Y. 484 (1944).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Baldwin v. City of Buffalo, 6 N.Y.2d 168, 189 N.Y.S.2d 129 (1959). . . . . . . . . . . . . . . . . . . . . . . . 23, 30-33 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).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Bingham v. New York City Transit Authority, 99 N.Y.2d 355, 756 N.Y.S.2d 129 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Browne v City of New York, 241 N.Y. 96 (1925). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 24-29, 31 Bugeja v City of New 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 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Carodix Corp. v. Comisky, 265 A.D. 450, 39 N.Y.S.2d 732 (2d Dep’t), aff’d, 291 N.Y. 737 (1943).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32 City of White Plains v. Del Bello, 87 A.D.2d 483, 452 N.Y.S.2d 71 (2d Dep’t 1982). . . . . . . . . . . . . . . . . . . . . . 47 Clark v. La Guardia, 245 A.D. 325, 281 N.Y.S. 54 (2d Dep’t 1935). . . . . . . . . . . . . . . . 12, 24, 26-27 iv00112522-2 TABLE OF AUTHORITIES Nassau County v. Inc. Village of Woodsburgh, 86 A.D.2d 856, 447 N.Y.S.2d 326 (2 Dep’t 1982), aff’d, 58 N.Y.2d 996, 461 N.Y.S.2d 1008 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 County Securities, Inc. v. Seacord, 278 N.Y. 34 (1938).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 24, 30 DJL Restaurant Corp. v. City of New York, 96 N.Y.2d 91, 725 N.Y.S.2d 622 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Farrington v. Pinckney, 1 N.Y.2d 74, 150 N.Y.S.2d 585 (1956). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Ferres v. City of New Rochelle, 68 N.Y.2d 446, 510 N.Y.S.2d 57 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 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). . . . . . . . . . . . . . . . . . . . . . . . . . 19, 46 Friedman v. Cuomo, 39 N.Y.2d 81, 382 N.Y.S.2d 961 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Greater New York Taxi Ass'n v. State, 21 N.Y.3d 289, __ N.Y.S.2d __ (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Heimbach v. Mills, 67 A.D.2d 731, 412 N.Y.S.2d 668 (2d Dep't 1979).. . . . . . . . . . . . . 8, 39, 48, 51 Inc. Village of Atlantic Beach v. Town of Hempstead, 27 A.D.2d 556, 276 N.Y.S.2d 4 (2d Dep’t 1966), aff’d. 19 N.Y.2d 929, 281 N.Y.S.2d 337 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 In re Wadhams' Estate, 249 A.D. 271, 292 N.Y.S. 102 (4th Dep't 1936). . . . . . . . . . . . . . . . . . . . 35, 54 v00112522-2 TABLE OF AUTHORITIES Jackson v. Nassau County Bd. Of Supervisors, 818 F.Supp. 509 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3 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). . . . . . . . . . . . . . . . . . . . 59 Lehigh Valley R. Co. v. Joseph, 281 A.D. 57, 117 N.Y.S.2d 170 (1st Dep’t 1952). . . . . . . . . . . . . . . . . 18-19, 45 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). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 55 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). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Matter of Fifth Avenue Office Center Co. v. City of Mount Vernon, 89 N.Y.2d 735, 658 N.Y.S.2d 217 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Matter of Gizzo v. Town of Mamaroneck, 36 A.D.3d 162, 824 N.Y.S.2d 366 (2d Dep’t 2006). . . . . . . . . . . . . . . . . . . . . 59 Matter of Main Street In The Village of Sing Sing, 98 N.Y. 454 (1885).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Matter of Newbany Corp. v. Bd. of Assessors, 153 A.D.2d 696, 545 N.Y.S.2d 272 (2d Dep’t 1989). . . . . . . . . . . . . . . . . . . . 55 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,. . . . . . . . . . . . . . . . 55 10 N.Y.3d 445, 859 N.Y.S.2d 576 (2008) 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). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 vi00112522-2 TABLE OF AUTHORITIES Meegan v. Brown, 16 N.Y.3d 395, 924 N.Y.S.2d 1 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 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). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Pearsall v. Brower, 120 A.D. 584, 105 N.Y.S. 207 (2d Dep’t 1907). . . . . . . . . . . . . . . . . . . . . . . . 54 People v. Westchester County, 282 N.Y. 224 (1940).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 34 Riley v. County of Broome, 95 N.Y.2d 455, 719 N.Y.S.2d 623 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Rozler v. Franger, 61 A.D.2d 46, 401 N.Y.S.2d 623 (4th Dep't 1978). . . . . . . . . . . . . . . . . . . . 8, 39 Sonmax, Inc. v. City of New York, 43 N.Y.2d 253, 401 N.Y.S.2d 173 (1977). . . . . . . . . . . . . . . . . . . . . . . . . passim Town of Smithtown v. Howell, 31 N.Y.2d 365, 339 N.Y.S.2d 949 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 vii00112522-2 TABLE OF AUTHORITIES New York Constitutions 1894 Constitution (as amended), Article III, §26. . . . . . . . . . . . . . . . . . . . . . 1, 7, 27 1938 Constitution, Article IX, §2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12, 17 1938 Constitution, Article IX, §12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 1963 Constitution, Article IX, §1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 1963 Constitution, Article IX, §2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 1963 Constitution, Article IX, §3. . . . . . . . . . . . . . . . . . . . . . . . 8, 12, 15, 37, 50-52 State Laws And Statutes N.Y. Laws of 1937, Ch. 618. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 22 N.Y. Laws of 1939, Ch. 700. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 N.Y. Laws of 1948, Ch. 98. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 N.Y. Laws of 1948, Ch. 851. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 50 McKinney's Statutes §92(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Municipal Home Rule Law §10(ii)(1)(a)(8). . . . . . . . . . . . . . . . 9, 38, 42-46, 48, 49 Municipal Home Rule Law §11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Municipal Home Rule Law §22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Municipal Home Rule Law §32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Municipal Home Rule Law §34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 49-51, 53 Municipal Home Rule Law §35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Municipal Home Rule Law §50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Real Property Tax Law §708.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Real Property Tax Law §712.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Real Property Tax Law §726(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Real Property Tax Law §2006.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Local Law 18-2010 (“The Common Sense Act”). . . . . . . . . . . . . . . . . . . . . . passim Nassau County Administrative Code, Section 16-7.3. . . . . . . . . . . . . . . . . . . . . . 63 Nassau County Administrative Code, Section 6-26.0. . . . . . . . . . . . . . . . . . . 55, 56 Nassau County Charter, Section 103.. . . . . . . . . . . . . . . . . . 7, 17, 18, 20, 25, 34, 53 viii00112522-2 TABLE OF AUTHORITIES Nassau County Charter, Section 104.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Nassau County Charter, Section 150.. . . . . . . . . . . . . . . . . . . . . 7, 13, 19, 20, 27, 41 Nassau County Charter, Section 151.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 41, 42 Nassau County Charter, Section 154.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 41 Nassau County Charter, Section 162.. . . . . . . . . . . . . . . . 6, 7, 13, 17, 21, 23, 27, 40 Nassau County Charter, Section 302, 303. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 18 Nassau County Charter, Section 602.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 18, 20 Nassau County Charter, Sections 606-608. . . . . . . . . . . . . . . . . . . . 7, 18, 54-55, 56 Nassau County Charter, Section 2201. . . . . . . . . . . . . . 7, 17, 18-20, 28, 34, 35, 57 Other 2001-2011 Tax Certiorari Activity Report of the NYS State Board of Taxation and Finance, published online at WWW.TAX.NY.GOV/RESEARCH/PROPERTY/REPORTS/SCARCERTIORARI/ CERTIORARI01_11.HTM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 2001-2011 Small Claims Assessment Review Activity Report of the NYS State Board of Taxation and Finance, published online at WWW.TAX.NY.GOV/RESEARCH/PROPERTY/ REPORTS/SCARCERTIORARI/SCAR01_11.HTM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 J. Hildebrand, Newsday, “Town governments in both counties are flooded by challenges that may lead to some surprising increases” (May 5, 2009). . . . . . . . . 61 C. Matthews, The Journal News Online, “Businesses carve millions in tax refunds from schools; old assessments blamed” (July 13, 2013), published online at WWW.LOHUD.COM/ARTICLE/20130715/NEWS02/307150011/BUSINESSES-CARVE- MILLIONS-TAX-REFUNDS-FROM-SCHOOLS- OLD-ASSESSMENTS-BLAMED.. . . . . . . . 62 All references to “AC” are references to the Appellants’ Compendium, which was1 submitted at the request of the Court several weeks after Appellants’ Brief was filed. Similarly, all references to “RC” are references to the Respondents’ Joint Compendium. For ease and clarity of reference, the brief submitted on behalf of Respondent school2 districts is referred to as the “Baldwin Brief.” The brief submitted on behalf of Respondent Town of North Hempstead and the special districts is referred to as the “Town Brief.” The brief submitted on behalf of Respondents Hafner and Wiener is referred to as the “Hafner Brief.” 100112640-1 PRELIMINARY STATEMENT Appellants Nassau County, its Legislature, and its County Executive (collectively, the “County”) respectfully submit this Reply Brief in further support of their appeal from the Opinion & Order of the Appellate Division, Second Department which erroneously invalidated The Common Sense Act duly enacted by the County in 2010 (AC153).1 In their briefs, Respondents present a highly-strained analysis of the2 relevant constitutional provisions and statutes in an attempt to support their erroneous, and absurd, conclusion that Nassau County has virtually no powers of local legislation over its own governmental affairs – not even to amend its own Administrative Code to align with State law and eliminate an unconscionable provision that has brought the County to its financial knees. In order to reach this conclusion, Respondents conspicuously ignore the plain text of the Constitution, the Nassau County Charter, and the Administrative Code, all of which endowed Nassau County with extremely broad powers of local legislation under what is The “alternative form of government” provision was formerly in Article III, §26 of the3 1894 Constitution, as amended (AC1-2), moved and renumbered in 1938 to Article IX, §2 (AC18-20), and now is renumbered as Article IX, §1(h) of the Constitution. (AC37) Respondents attempt to discredit this factual history, claiming the County did not cite4 legal treatises (Town Br., pp. 3-5) or that there was no “foundation” for these facts (Baldwin Br., p. 34). This is demonstrably false. Among other things, the facts stated by the County (pp. 17-22 of Appellants’ moving brief) are directly supported by (i) the 1948 Bill Jacket accompanying the Guaranty in which the conflicted Town-controlled Board of Supervisors admitted it did not comply with the tax laws and had not charged back the towns and school districts for their share of the tax refunds since 1938 (JR182); (ii) the Charter itself, including former Section 104 (evidencing composition of illegal Board of Supervisors consisting of Town and city-elected officials); and (iii) Jackson v. Nassau County Bd. Of Supervisors, 818 F.Supp. 509, 535 (1993), which declared the weighted voting system unconstitutional. 200112640-1 now Article IX, §1(h) of the New York Constitution establishing alternative3 forms of government. Rather than engage in the proper analysis under Article IX, §1(h), Respondents instead engage in a myopic analysis under Article IX, §2 of the Constitution, completely ignoring that the County’s alternative government was formed under Article IX, §1(h), that it was granted and delegated broad and specific powers of local legislation, including over matters other than its “property, affairs, and government,” such as taxation (which is traditionally a state function but which can be delegated by the State Legislature under Article IX, §1(h)), as was done here. Moreover, confronted with the unassailable historical facts underlying the enactment of the County Guaranty in 1948, Respondents dismiss them as “conjecture” or “theoretical discourse,” even though those facts provide the only4 Indeed, it defies all logic to believe that a municipality would ever enact a law that would5 greatly add to its financial burden with no concomitant benefit. And yet that is precisely what the Town-controlled Board of Supervisors did for their own political and financial benefit. 300112640-1 explanation as to why a “County” Board of Supervisors would ever advocate enactment of a law that would shift the burden of paying tax refunds away from the towns and school districts that actually received the tax money, and instead place that burden directly onto the County itself, which only received a fraction of the tax revenues. As set forth in Appellants’ moving brief, the composition of the former Board of Supervisors for Nassau County serving from 1938 through 1993 consisted of three Town supervisors and two City supervisors elected on a town- wide and city-wide basis (not on a County-wide basis), voting under a weighted voting system. The supervisors had inherent conflicts of interest in favor of the towns and cities that elected them to the detriment of the County which led directly to the enactment of the County Guaranty. Indeed, that very system was invalidated as unconstitutional. Jackson v. Nassau County Bd. Of Supervisors, 818 F.Supp. 509, 535 (1993). Understanding the corrupt and conflicted history leading to the enactment of the County Guaranty, which saddled the County with an unconscionable burden, places the entire controversy in context. Respondents, however, want the Court5 to view the County Guaranty in isolation – anchored not by reason or logic, but 400112640-1 remaining a financial anomaly in the State of New York, allegedly existing only to serve the noble altruistic purpose of relieving the school districts, special districts, and towns from paying their proportionate share of tax refunds. Respondents advance several arguments in a desperate and failed attempt to explain why the County Guaranty allegedly makes “perfect sense.” First, Respondents argue it is only “fair” to have the County, as the assessing unit, bear the obligation to pay 100% of tax refunds, even though it only receives approximately 20% of the tax revenues, because the County allegedly is to “blame” for the erroneous assessments. There is simply no logic in having the “assessing unit” responsible for 100% of the tax refunds merely because it may be responsible for the overassessment. Nor is there any state law cited by Respondents (because there is none) that makes the “assessing unit” responsible to pay 100% of the tax refunds. “Refunds” represent a return of monies that were actually paid and received by the taxing unit, whether it be the County, town, or school district; the obligation to pay a “refund” is borne by the entity that actually received such revenues, which is precisely what state law – i.e. Real Property Law §726 – provides. Just because an assessment may be inaccurate does not mean that the assessing unit should be liable to “refund” monies it never received. If it was The Town of North Hempstead and its Co-Respondents falsely imply that in other6 counties, towns are not required to bear their proportionate share of tax refunds. (Town Br., p. 3) This is demonstrably false and contrary to the black letter law. RPTL §726 requires the taxing districts to make their share of refunds, contrary to the statements contained in the Town’s Brief. However, towns in Suffolk County are subject to a partial guaranty provision under which the town bears the cost of refunds of the share of overpayments received by school districts. (JR193-94) The legislation enacting this partial guaranty was strongly opposed by state finance officials on equity grounds. (JR207-15). 500112640-1 logical, fair, and practical to have the assessing unit bear 100% of the refund obligation, then the law would require assessing units to bear the obligation to pay refunds. To the contrary, state law provides, logically, for refunds to be paid proportionally by the entity that received the tax revenues (RPTL §726). Thus, even though in 60 of the 62 counties in New York State the assessing function is performed by the towns, the towns (i.e. the assessing units) are not required to pay the tax refunds resulting from their overassessments. And in the one county other6 than Nassau that does perform the assessing function (Tompkins County), the county does not pay all the tax refunds. Respondents also fail to confront the central fact that school districts are not the assessing unit in any of the 62 counties of this State, are always subject to the accuracy of their respective assessing unit’s tax assessments, and must budget accordingly to ensure funds are available to pay those refunds. Respondents’ contention that they should not have to refund monies they admittedly received, merely because they were not the “assessing unit,” is meritless. Indeed, the same 600112640-1 argument could be made by every school district in the State, almost all of whom are subject to assessments made by Town Assessors, and all of whom are still obligated to fund their proportion of tax refunds in accordance with Real Property Tax Law §726. Respondents raise a host of specious challenges to the County’s authority to repeal the County Guaranty under the Municipal Home Rule Law, the Statute of Local Governments (collectively, the “home rule statutes”), and the home rule article of the Constitution. The central flaw in these arguments is that they ignore the County’s independent and coordinate power to enact and amend its own laws, including its Administrative Code, under its State-enacted Charter through a delegation of power under what is now Article IX, §1(h) – a power that, pursuant to saving and conflict clauses in the Constitution, the home rule statutes, and the Charter itself, provides an independent basis of authority beyond the home rule statutes of general applicability. Indeed, Charter §162 (“Legislative Intent”) established a saving and conflict rule, making the County’s lawmaking authority under Article 1-A of the Charter additional to that conferred “by any other law heretofore or hereafter enacted” (emphasis added) – and predominant in the case of any conflict. 700112640-1 Respondents purposely fail to recognize, or downright ignore the crucial and dispositive difference between the general grant of authority applicable to all units of government (under Article IX, §2 of the current Constitution), and the specific grant of authority which is applicable only to Nassau County because it elected an alternative form of county government under what is now Article IX, §1(h) of the current Constitution. Even before 1936, Nassau County (along with Westchester County) was singled out in the Constitution as one of only two counties as to which the legislature could not impose special laws. See 1929 Amendment to N.Y. Constitution, Art. III, §26 (AC3). Thereafter, and to date, and unlike any other county, in 1936, 1937, and 1939 the State legislature exercised its constitutional prerogative to grant Nassau County alone the broad authority to levy taxes (AC87, at §103), to make and administer tax assessments (AC91-101, at §§302, 303, 602, 607, and 608), to enact local laws (AC86, 107, at §§103 & 150), to supercede state special laws (AC107, at §151), to create and enact a “plan” for the levy, assessment, and collection of taxes (AC103-104, at §2201), and to enact laws for the “administration” thereof (AC86, at §103). The State legislature further declared its intention to empower Nassau County to have “full and complete” powers of local legislation (AC109-110, 120, at §162). These powers easily encompass enactment of The Common Sense Act In light of these specific and broad powers granted to the County by the State legislature,7 including powers of taxation, it is bizarre, to say the least, for certain Respondents to argue that the County’s powers to legislate “excluded matters of state concern including taxation,” and was limited only to matters relating to its “property, affairs, or government.” (Hafner Brief, pp. 14-17, 25-26). See Heimbach v. Mills, 67 A.D.2d 731, 412 N.Y.S.2d 668 (2d Dep't 1979)("Section 28 [of Article IX 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.")(emphasis added); Rozler v. Franger, 61 A.D.2d 46, 401 N.Y.S.2d 623, 628 (4th Dep't 1978)(same). Respondents’ briefs do not address these holdings. Indeed, the only mention in any of Respondents’ Briefs concerning the savings clauses is9 found in the Hafner Brief, which absurdly states that the multiple savings clauses are irrelevant because they cannot “save” non-existent powers. (Hafner Br., p. 26) 800112640-1 and are in no way limited by Article IX, §2(c).7 When new Article IX, §2 was adopted in the 1963 Constitution, it applied to all units of local government, and did not limit the powers already granted to alternative forms of government, such as the County. Indeed, that new Article IX,8 §2 was subject to the powers granted under Article IX, §1 and all prior grants of authority by virtue of a savings clause in Article IX, §3(b). Thus, if anything, Article IX, §2 gave the County additional powers of legislation, and did not, and could not, impose limitations on powers already granted under Article IX, §1. Respondents’ briefs are also conspicuously silent on the impact of the various saving and conflict provisions, knowing that they squarely support9 Appellants’ contentions herein. Nevertheless, in addition to possessing the express authority in its Charter 900112640-1 to enact The Common Sense Act, the County had the authority both under Article IX, §2 of the State Constitution, and – even more plainly, under MHRL §10(ii)(1)(a)(8), which expressly empowers all counties to enact local laws concerning the “levy and administration of local taxes” and expressly provides that when such taxes are property taxes, the local laws are not required to be “consistent with laws enacted by the legislature” as long as they do not conflict with general laws. See Sonmax, Inc. v. City of New York, 43 N.Y.2d 253, 401 N.Y.S.2d 173 (1977). Indeed, remarkably absent from all three Respondents’ Briefs is any analysis of MHRL §10(ii)(1)(a)(8) and its provision exempting local laws relating to property taxes from the “consistent with state laws” requirement contained therein. Thus, in addition to its irrefutable plain text, it is now unchallenged that this statute authorizes local legislation by counties concerning the “levy and administration” of taxes, and does not limit that authority to having to be “consistent” with laws of the state when it comes to property taxes. Of course, The Common Sense Act exclusively concerns real estate property taxes and thus, there was no requirement that it be consistent with state laws, including the County Guaranty. 1000112640-1 Respondents’ myriad other attacks on The Common Sense Act, none of which were credited by the courts below and all of which are meritless and border on the absurd, must also fail. As established herein, The Common Sense Act does not violate educational funding rules, it is irrefutably “rational,” it was not subject to referendum, and it is not in any other manner infirm. As to the arguments concerning the applicability of MHRL §34, that section concerns amendments to county charters, not amendments to a county’s Administrative Code, and therefore, is completely inapplicable. The Common Sense Act is a lawfully enacted local law and the Court below exceeded its authority in invalidating it. The Opinion and Order should be reversed, on the law. COURT OF APPEALS JURISDICTION Certain Respondents suggest they disagree with this Court’s acceptance of Appellants’ appeal as of right, because the Nassau County Charter and Administrative Code, along with the state Constitution, are involved. The claim is completely meritless. As the briefs amply confirm, every aspect of this appeal intimately concerns home rule powers created and derived from the Constitution of this state as it has existed over the past century in various forms, and every issue on this appeal is premised on the State Constitution and the rights granted 1100112640-1 thereunder. In addition thereto, we respectfully refer the Court to its holding in Sonmax, Inc. v. City of New York, 43 N.Y.2d 253, 401 N.Y.S.2d 173 (1977), where this Court ruled that when a local law (such as the County Guaranty) is claimed to have been a state special law enactment, and as to which it is claimed it should not have been amended by subsequent local law, additional Court of Appeals jurisdiction exists because, like Sonmax, the appeal involves questions over “the validity of a statutory provision of the state.” 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 Respondents’ Briefs concede or fail to meaningfully contest several salient points. Respondents do not deny, and therefore concede, that the Nassau County Administrative Code provisions, which formerly contained the County Guaranty, were at best a special law, and not a general law. Nor do they deny it is a law contained only in the Nassau County Administrative Code and applies only to 1200112640-1 Nassau County. See N.Y. Constitution, Art. IX, §3(d)(4)(defining “special law” as "A law which in terms and in effect applies to one or more, but not all, counties"); Laws of 1948, Ch. 851 (AC123)(“An act to amend the Nassau county administrative code"); see also Point III, infra (citing ample case law holding that County Guaranty is contained only in the Nassau County Administrative Code and not in its Charter). Because the County Guaranty was a special law, and not a general law, Respondents’ attempted case law analysis is completely off-base. The case law cited by Respondents all turned on the fact that the municipality was attempting to enact a local law contrary to state general laws, not contrary to a special law. Browne v City of New York, 241 N.Y. 96 (1925)(law contravening Public Service Commissions Law and Transportation Corporations Law); Clark v. La Guardia, 245 A.D. 325, 281 N.Y.S. 54 (2d Dep’t 1935)(same); County Securities, Inc. v. Seacord, 278 N.Y. 34 (1938)(law contravening “the general Tax Law.”) Respondents also do not attempt to support the Appellate Division’s overtly erroneous constitutional analysis, wherein it ignored the fact that Nassau County operates under an alternative county government law, and that when the State Legislature created that alternative form of county government in the 1930’s it bestowed on the County all the local powers allowed under Article IX, §2 of the 1300112640-1 Constitution as it existed at the time – provisions which are now found under Article IX, §1(h). See 1938 N.Y. Constitution, Art. IX, §2 (AC18-19)(a form of alternative county government created by the legislature “may also provide for the exercise by ... the elective governing body of powers of local legislation and administration”); Laws of 1939, Ch. 700, §§150 & 162 (AC119-120)(granting Nassau County “powers of local legislation and administration under the provisions of section two of article nine of the constitution” and indicating that “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 two of article nine of the constitution”). Respondents, whether intentionally or not, fail to acknowledge the critical distinction between the County’s specific grant of authority delegated under current Article IX, §1 (the “Section 1 Analysis”) versus the general grant of authority to all units of local government under Article IX, §2 (the “Section 2 Analysis”). Under a Section 1 Analysis, the scope and type of powers granted to the County electing an alternative form of government turns on what grant of authority the State Legislature decides to give to the electing County, which in turn are reflected in the Charter and Administrative Code. A Section 1 Analysis does not involve a limited grant of power over the “property, affairs, and 1400112640-1 government” of the County, as Respondents falsely state, but concerns an express delegation of whatever powers the state Legislature saw fit to delegate, which are found in the Charter and Administrative Code. A Section 2 Analysis, on the other hand, involves an analysis of the powers granted to all units of government, including limitations on the exercise of powers of local legislation in matters other than the “property, affairs, and government.” Respondents engage only in a myopic, and irrelevant, Section 2 Analysis, completely ignoring Article IX, §1. Nor do they make any effort to support the Appellate Division’s patently erroneous holding that the 1963 renumbered version of Article IX, §2 (i.e. the general grant of authority to all units of government) is somehow what the legislature, in 1937 and 1939, was referring to when it granted the County “full and complete” powers of local legislation under the alternative county government provisions which were then found in Article IX, §2 (and before 1938, found in Article III, §26), but which in 1963 were renumbered and placed into Article IX, §1. 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.”) This is a new argument, impermissibly raised for the first time on appeal and thus,10 should not be considered. Bingham v. New York City Transit Authority, 99 N.Y.2d 355, 756 N.Y.S.2d 129 (2003). Even if the Court does consider it, it is meritless. 1500112640-1 Respondents contend that the adoption of a new Constitution in 1963 automatically became the “supreme law” and instantly applicable and controlling on the County. (Baldwin Br., pp. 59-68) This is not accurate. Among other things, because the 1963 Constitution contains a savings clause, all prior grants of authority were expressly protected and preserved. See Article IX, §3(b). In a strained attempt to argue that Article IX, §2 of the 1963 Constitution is applicable and somehow restricts the County’s powers of local legislation, the Town Respondents argue that when the County amended portions of its Charter in 1994 to remove references to the unconstitutional Board of Supervisors and replace them with references to a County Legislature, that somehow resulted in rendering the Charter’s references to Article IX, §2 of the Constitution as it existed in 1939, to now being a reference to Article IX, §2 of the Constitution as of 1994, i.e. as including the 1963 amendments and renumbering of the Constitution. (Town Br., pp. 6, 8, 12, 13-16, 18) The claim is meritless. Nothing10 in that 1994 legislation, all of which was aimed solely at removing references to the Board of Supervisors and replacing them with references to a County Legislature, even suggested, let alone provided, that the broad powers of self- 1600112640-1 governance given to the County in the 1930’s were being restricted. More importantly, Respondents’ argument is fatally flawed because it is based on a false premise. Article IX, §2 of the 1939 Constitution was the “Alternative form of government” provision, under which the County was indisputably formed. Article IX, §2 of the 1963 Constitution is not the “Alternative form of government” provision – that provision was renumbered and is now found in Article IX, §1(h). Thus, the reference in the 1939 Constitution to the powers granted under Article IX, §2 (“alternative forms of government”) could only be referencing Article IX, §1(h) of the 1963 Constitution (“alternative forms of government”), and not the general home rule powers in the new Article IX, §2. This appeal can accordingly be determined as a matter of rudimentary constitutional analysis, as follows: (1) the alternative county government provisions of the Constitution (found in Article IX, §2 in 1938 Constitution and now renumbered as Article IX, §1 in 1963 Constitution) authorize a grant of all powers of local legislation that the State Legislature desires to bestow on an alternative form of county government; (2) the State Legislature created an alternative county government for Nassau County, expressly electing to give Nassau County the broadest powers allowed, including powers relating to the appropriation and levy of taxes (AC87, at §103), the creation of a “plan” for tax 1700112640-1 “assessments,” “collections,” and “appropriations” (AC103-104, at §2201), and authority to provide for the “administration” thereof by enactment of local laws (AC86, at §103). The delegation of these powers of taxation are beyond the more limited general matters of local legislation (“property, affairs, and government”), and is the best evidence, as if more were needed, that the State Legislature intended to, and did, grant the County specific, broad powers of local legislation, and delegated to it the powers of taxation. As established in Appellants’ Brief, the state law creating the alternative form of county government under which Nassau County operates (the “Local Legislation Act”)(AC85,106, and 119) contains uncommonly broad grants of local law making authority to Nassau County. That State legislation goes so far as to express its intention was to accord the County “full and complete. . .powers of local legislation.” (AC109-110, 120 at §162). Specifically, it provides that the County’s elective 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.”(AC86-87, at §103). It provides extensive provisions 1800112640-1 regarding the County’s authority over matters relating to taxes, including authority to “make appropriations and levy taxes” (AC87, at §103(7)), authority to make and administer assessments through its board of assessors (AC98-99, at §602), authority to account for and estimate taxes collected and uncollected (AC91-92, at §302), authority to make budget determinations based upon estimated tax receipts (AC91-93, at §§302-303), authority to “make corrections ... in the assessment roll” and to certify the assessment roll through its board of assessors (AC100, at §607, later renumbered as §606), and provisions for the “[u]se of county assessment roll by village or city” (AC100-101, at §608, later renumbered §607). Moreover, Section 2201 of the 1936 State legislation provides the County with the full authority to enact “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” (AC103-104, at §2201). The County thereafter enacted “a plan” including its Administrative Code, setting forth all the provisions relating to the assessment of property for tax purposes. All of this clearly encompasses the authority to change the County’s Administrative Code in relation to who ultimately bears the cost of property tax 1900112640-1 refunds. See Lehigh Valley R. Co. v. Joseph, 281 A.D. 57, 117 N.Y.S.2d 170 (1st Dep’t 1952)(“We deem it quite clear that under the broad delegation of the power of tax administration” under the home rule provisions of the Constitution and the City Home Rule Law “the City was authorized to provide for [tax] refunds without interest” even though the statutes made no mention of tax refund interest), aff’d 305 N.Y. 853 (1953) (emphasis added); 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). Even this ample authority was subsequently enlarged in 1937. Thus, true to its alternative structure and purpose, and at the request of Nassau County and its Charter Commission, the State Legislature amended the Alternative Form of County Government Law in 1937 to confer on Nassau County the broadest authority allowed by the then-existing Constitution (Laws of 1937, Ch. 618)(AC106). This 1937 Local Legislation Act added a new “Article 1-a,” entitled “Local Laws,” which new Article bestowed on counties adopting it “full and complete. . .powers of local legislation” including through adoption of local laws (AC107-110, 119-120, at §§162, 150). The restrictions on County legislation, found in Section 154, do not include a restriction11 on repealing a law which affects the property, affairs or government of a town, school district or special district. It is noteworthy that Section 154(7) and (8) do restrict County legislation which “[a]pplies to or affects any provision of law relating to” the property, affairs or government of the cities and villages within the County. No city or village is a petitioner or plaintiff in any of the three actions here, because even in Nassau County all cities and villages levy (and refund) their own taxes and were never covered by the County Guaranty. See Charter § 602 (AC98, 222) (providing that Nassau County assesses only state, county, town, school district, and special district taxes, not city or village taxes); Matter of 1 Toms Point Lane Corp. v. Board of Assessors, 239 A.D.2d 503, 504-505, 658 N.Y.S.2d 348 (2d Dep’t 1997)(even if village opts to use County property assessment figures, because villages levy their own taxes they must bear the cost of refunds, and are not covered by the County Guaranty). 2000112640-1 In short, Respondents are just wrong in claiming that the Local Legislation Act, all of which is still to this day in the Nassau County Charter (AC197), does not grant the County the power to enact The Common Sense Act. To employ just some of the words of the enabling State legislation in the Local Legislation Act, the express authority to enact a local law making a plan for tax refund obligations is specifically contained in the broad authority to make “local laws” including for the “administration” of its functions so long as not within the categories prohibited in Section 154 (AC86, at §103; AC107, at §150), the authority to “make11 appropriations, levy taxes and incur indebtedness” (AC87, §103); the authority to make a “plan” for “the assessment of property;” the authority to make a “plan” for “appropriations” based on such assessments; the authority to make a “plan” for “the levy of taxes,” and the authority to make a “plan” for “the collection of taxes.” (AC103-104, at §2201). The State Legislature was empowered to grant counties with alternative forms of12 government, such as Nassau County, whatever powers of local legislation the legislature desired. (AC18, 37) 2100112640-1 Topped off with the express legislative intent that the rights of local legislation and administration conferred on Nassau County were meant to be “full and complete” to the fullest extent allowed under the constitutional provisions pertaining to alternate forms of county governments (AC 109-110, 120, at §162), which constitutional provisions contain no limitation in regard to allowing local authority over tax refund plans and administration, it is manifest and irrefutable12 that Nassau County was accorded the express authority to enact The Common Sense Act. Respondents’ arguments to the contrary are addressed further below. A. Respondents’ Attempt To Subvert The Express Text Of The Local Legislation Act Through Legislative History Analysis Of The 1937 Amendments Is Legally And Factually Meritless Desperate to turn the focus away from the express text of the already broad express grants of local authority in the Local Legislation Act (AC85, 106), ignoring Article IX, §1 pursuant to which the County obtained its broad powers, and failing to undertake any Section 1 Analysis at all, Respondents ask this Court to conclude that when the State Legislature enacted the Local Legislation Act, including Article 1-a entitled “Local Legislation” in 1937, which expressly stated that the State’s “legislative intent” was to accord the County “full and complete. . 2200112640-1 .powers of local legislation,” that somehow the whole thing really meant nothing. Worse, relying on the opinion in support of the 1937 legislation by a mid- level lawyer to the Governor (the writer of the memo, Mr. Sobel, was not even the Counsel to the Governor), Respondents suggest that the 1937 legislation perhaps limited the County’s authority. The contention finds no support whatsoever in the actual text of what the legislators voted on (and said in their “legislative intent”) and the Governor signed into law 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)). Indeed, even Mr. Sobel, the lawyer who wrote a memorandum in support of the Governor’s approval of the Local Legislation Act, and who opined (erroneously) that courts might not give the Local Legislation Act its intended broad effect, acknowledged that the intention of the Local Legislation Act was to confer local authority. See Respondents’ Compendium p. 6, Governor's Bill Jacket to Laws of 1937, Ch. 618, undated “Memo to C.P.” by Sobel (“The bill 2300112640-1 attempts for the first time to give to the County of Nassau local legislative powers [under] the Home Rule Amendments of the Constitution”). In addition, Mr. Sobel’s erroneous analysis, premised on his misguided legal conclusions concerning the City Home Rule Law, is simply wrong because it is based on a feature of the City Home Rule Law which was and is absent from the Local Legislation Act, and which in any event was specifically legislatively abrogated in the 1938 and 1963 home rule amendments to the Constitution. See discussion below of Baldwin v. City of Buffalo, 6 N.Y.2d 168, 189 N.Y.S.2d 129 (1959)(rejecting contention that general grant to cities of local legislation concerning their “property, affairs, and government” is not itself a conferral of local legislative authority). More than that, however, Mr. Sobel’s erroneous analysis did not address or even mention the Local Legislation Act’s conferral of authority to “chang[e] or superced[e]” state special laws, and he overlooked Section 162 thereof which specified that “full and complete” powers of local legislation were being conferred on Nassau County (AC107, 109-110). It is not even clear whether these additional provisions and legislative intent were yet included in the version of the proposed Local Legislation Act at the time Mr. Sobel reviewed them in his undated memorandum, or whether he simply overlooked them, just as he overlooked the 2400112640-1 fact that even previously existing provisions of the Nassau County Charter and the 1936 laws under which it was adopted already granted broad and specific powers of local legislation, including the powers to enact “local laws,” to “make appropriations,” and to “levy taxes.” (AC86-87, at §§102, 103). B. The Three Cases Cited By Respondents, Browne v. City of New York, Clark v. La Guardia, and County Securities v. Seacord All Concerned General Laws, Not Special Laws, And All Three Have Been Expressly Abrogated Respondents rely on Browne v. City of New York, 241 N.Y. 96 (1925), cited by Mr. Sobel in his undated memorandum (RC6). Respondents’ reliance on Browne is seriously misplaced, as was Mr. Sobel’s “opinion” premised on Browne in 1937. Given the express 1938 and 1963 constitutional home rule amendments which specifically abrogated Browne and its progeny, Respondents’ reliance on the case is simply wrong. Browne and Clark v. La Guardia, 245 A.D. 325, 281 N.Y.S. 54 (2d Dep’t 1935), later ruling aff’d 273 N.Y. 639 (1937), concerned New York City’s attempt to operate its own municipal bus line. Decades earlier, this Court made clear that the City was prohibited from doing so by both general and special laws. Browne held that the enactment of the City Home Rule Law, which granted the City powers of local administration over its property, affairs and government only in enumerated ways, did not constitute State legislative authority to operate a bus line 2500112640-1 in contravention of existing general and special laws. This analysis was premised on (1) a limitation found in the City Home Rule Law which is completely absent from the Local Legislation Act, and (2) the 1923 wording of the constitutional home rule provisions pertaining to cities only, which was later specifically abrogated by the passage of the 1938 and the 1963 Constitutions. Specifically, the City Home Rule Law (AC66), upon which the Local Legislation Act was patterned (but not word-for-word and specifically not in this regard)(AC233), contained the following language: § 11. Power of cities to adopt and amend local laws. 1. The local legislative body of a city shall have power to adopt and amend local laws in relation to the property, affairs or government of the city relating to the powers, duties, qualifications, number, mode of selection and removal, terms of office and compensation of all officers and employees of the city, the transaction of its business, the incurring of its obligations, the presentation, ascertainment and discharge of claims against it, the acquisition, care, management and use of its streets and property, the wages or salaries, the hours of work or labor, and the protection, welfare and safety of persons employed by any contractor or subcontractor performing work, labor or services for it, the government and regulation of the conduct of its inhabitants and the protection of their property, safety and health (AC68) (emphasis supplied). Browne held that by its plain text, any exercise of local law authority over the “property, affairs or government” of the city under the City Home Rule Law The cited page 371 of the Respondent’s Compendium is the Report of the N.Y.S.13 Temporary State Commission on the Constitutional Convention, Vol. 13, Local Government, 1967. 2600112640-1 must be “relating to” the enumerated categories of subjects, none of which encompassed operation of a bus line. Second, and more importantly, the Browne Court held that state general laws (as well as special laws) had for decades prohibited the City from operating its own bus line, and nothing in the Constitution or the City Home Rule Law granted the City a right to abrogate general laws. Id. at 118 (“In effect, [the] local law or resolution would thus set aside a general law, for section 53 of the Public Service Commissions Law and sections 24 and 25 of the Transportation Corporations Law are general, applying as they do to all cities of the state alike”)(emphasis supplied). The “relating to” provision of the City Home Rule Law was later amended so as to include the modifier “including but not limited to.” See Respondent’s Compendium, p. 371 (pointing out that this modifier was added specifically as a13 result of the Browne case). This modification was nevertheless deemed insufficient in the Clark case because there was still no express conferral of authority to New York City to operate its own bus line in violation of longstanding general law and special laws. Clark, 245 A.D. 325 at 327. As explained in the memorandum of the drafter of the Local Legislation Act, contained14 in the bill jacket of that act (AC233), because under the then-existing version of the Constitution the state legislature could confer on counties with “alternative forms of county government” substantially broader powers of local legislation than cities, and the Constitution (before 1938) circumscribed the powers which could be accorded to cities, the Local Legislation Act was “pattern[ed]” on the City Home Rule Law but deliberately left out the limitations which were contained in the Constitution concerning city authority but not concerning county local law authority: “We have [] used the City Home Rule Act and the Fearon law [citation omitted] as our pattern, although we have recognized in our proposed amendment the distinction between the City Home Rule amendment (Article XII section 3) and the County Home Rule amendment (Article III section 26). The earlier amendment [pertaining to cities] limits by specification the powers of local legislation which may be exercised by cities, but the latter amendment [pertaining to counties] does not so restrict the counties.” (AC233) See also Article III, §26(2) of 1894 N.Y. Constitution as amended prior to 1938(AC1-2)(granting the State legislature authority to confer on counties “alternative forms of government” and “Any such alternative form of government may ... provide for the exercise by the board of supervisors or other elective body, the powers of local legislation ....”). 2700112640-1 Accordingly, the Browne and Clark cases do not support Respondents’ argument that the County had no authority to enact The Common Sense Act. The Common Sense Act is not contrary to any general law. Moreover, the Local Legislation Act specifically (and deliberately, as its drafter’s memorandum expressly stated) does not contain the limitation of local lawmaking authority14 problem which the City Home Rule Law was found to have had in 1925 (AC107, at §150). To the contrary, it provides for “full and complete” powers of local legislation (AC109-110, 120, at §162), including the power and full authority to Respondent’s Compendium, pp. 314-315 (N.Y.S. Special Legislative Committee on the15 Revision and Simplification of the Constitution, Staff Report No. 1, May, 1958.) 2800112640-1 enact “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” (AC103-104, at §2201), as well as all the other provisions discussed above, all of which easily encompasses the plan for dealing with tax refunds. The Administrative Code, enacted in 1939, was precisely such an “ordinance” or “plan” and provided for, among other things, a plan for the assessment of taxes and refunds thereof. But even more so, the 1938 and 1963 Constitutions effectively abrogated the holding of the Browne case. As explained even by the authority provided in the Respondents’ Compendium, the 1938 amendments to the Constitution, in its15 Article IX, §12 (and again in the 1963 Constitution in Article IX, §2), supplied the general power of local legislation over the property, affairs and government of the locality which the Browne Court in 1925 had concluded was missing. See AC27 (1938 Constitution at Art. IX, §12)(adding new provision that “Every city shall have the power to adopt and amend local laws not inconsistent with the constitution and laws of the state relating to its property, affairs and government”) 2900112640-1 and AC38 (1963 Constitution at Art. IX, § 2(c)(“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”); contrast Browne, 241 N.Y. at 106 (quoting full text of 1923 Constitutional provisions [i.e. those existing between 1923 and 1938] concerning city home rule, which had not contained any affirmative grant of “local law” authority over the “property, affairs or government” of the municipality and only provided that the state legislature could not enact special laws concerning the property, affairs or government of a city absent emergency message); see also Respondent's Compendium, pp. 314-315 (in reaction to Browne, the 1938 constitutional amendments “supplied this lack of general powers” over the property, affairs and government of the locality, requiring only that the power to adopt such local laws be consistent only with the general law). Fully putting to rest the Respondents’ mistaken contention – that the grants in the Constitution of local lawmaking authority to alternative forms of county governments, and the grants in the Local Legislation Act of full local lawmaking authority, including authority to enact a “plan” for tax assessment, collection, and appropriation – are somehow ineffective because they do not enumerate in even greater detail the power to make a plan for dealing specifically with tax refund 3000112640-1 obligations – is the 1959 holding in Baldwin v. City of Buffalo, 6 N.Y.2d 168, 189 N.Y.S.2d 129 (1959). Unlike the cases relied upon by Respondents, Baldwin was rendered after the 1938 constitutional amendments came into effect. In Baldwin, this Court rejected a claim that the general grant of local legislation authority concerning a locality’s “property, affairs, and government” was not a conferral of local legislative authority: “The task of the judiciary has been, and is, to determine whether a specific act comes within the scope of the phrase ‘property, affairs or government’ of a municipality. This phrase has been narrowly construed (see Adler v. Deegan, 251 N.Y. 467, 167 N.E. 705; Robertson v. Zimmermann, 268 N.Y. 52, 196 N.E. 740; County Securities v. Seacord, 278 N.Y. 34, 38, 15 N.E.2d 179, 181), but if the phrase is to have any meaning at all there must be an area in which the municipalities may fully and freely exercise the rights bestowed on them by the People of this State in the Constitution. The lines of demarcation are, concededly, not precise and they must be defined on a case-by-case basis, but they must exist, else ‘(h)ome rule for cities, adopted by the people with much ado and after many years of agitation, will be another Statute of Uses, a form of words and little else, if the courts in applying the new tests shall ignore the new spirit that dictated their adoption. The municipality is to be protected in its autonomy against the inroads of evasion.’ Matter of Mayor of City of New York (Elm St.), 246 N.Y. 72, 76, 158 N.E. 24, 25.” (emphasis added) Respondents curiously rely on a third case, County Securities, Inc. v. Seacord, 278 N.Y. 34 (1938), even though they then cite to the subsequent case of 3100112640-1 Carodix Corp. v. Comisky, 265 A.D. 450, 39 N.Y.S.2d 732 (2d Dep’t), aff’d, 291 N.Y. 737 (1943) which, among other things, held that County Securities was abrogated by the 1938 constitutional enactment. In other words, Respondent cited to a case (County Securities) which its own legal authority confirmed had been abrogated by virtue of the subsequent 1938 constitutional amendments. Nevertheless, a brief discussion of County Securities is instructive. There, the Court held that the City of New Rochelle, under the City Home Rule Law, had no power to amend its charter to provide that delinquent real property taxes become a lien on the property, and could be auctioned to third parties. As in the case of Browne, this Court held that the change in the city charter was contrary to state general law as well as contrary to the prior charter, and that no authority to change general tax law had ever been given to the City. County Securities, 278 N.Y. at 38 (“Nowhere in this or any other statute can be found an express grant of power to cities to enact local laws which have the effect of changing the method of collection of taxes provided for in the original charter and the general Tax Law.”) (emphasis supplied). The Common Sense Act is not in any respect contrary to any general law, and in fact it brings Nassau County in line with the tax law applicable to essentially every other county within this state, Real Property Tax Law §726(1). 3200112640-1 In any event, after the 1938 constitutional amendments came into effect, the Appellate Division, as affirmed by this Court, held in Carodix Corp., supra, that the City did have the authority to sell tax liens and to allow the purchaser of the liens to foreclose on them, thereby abrogating the holding in County Securities. In Carodix Corp., the Court found that the City had been expressly granted powers to sell and foreclose on tax liens even though the 1938 constitutional provision it relied on did not make specific reference to tax liens at all, let alone allowing for their foreclosure, and referenced only “the collection and administration” of taxes. Id. at 454 (“These provisions of the [1938] Constitution and the statute expressly confer upon cities the authority to adopt local laws relating to the collection and administration of local taxes. In other words, they supply the omission in the Home Rule Amendment and the City Home Rule Law which was emphasized in the County Securities case”). C. Respondents’ Reliance on People v. Westchester County Is Misplaced Respondents commit the precise same error in relying on the case of People v. Westchester County, 282 N.Y. 224 (1940), wherein Westchester County attempted, by local law, to abrogate prohibitions contained in a state general law (the Vehicle and Traffic Law). Specifically, the Vehicle & Traffic Law in question contained a provision expressly prohibiting local authorities from passing The Baldwin Appellants speciously contend that RPTL is not a “general law” (Baldwin16 Brief, p. 68) despite the fact that it applies to all the counties in the State of New York. It cites to nothing in support of this conclusory statement other than RPTL §2006 which merely states that “This chapter shall not be deemed to repeal or otherwise affect the provisions of any special or local law or ordinance or of any county, city or village charter, or other special form of government, it being the intention of the legislature that the same shall continue in full force and effect until and unless otherwise duly amended, repealed or affected.” 3300112640-1 local laws imposing fees for the use of “public highways.” Upon finding that the roadway in question, the Hutchinson River Parkway, was a “public highway” within the meaning of the Vehicle & Traffic Law, and upon examining the County’s Charter which only contained a general grant of power, the Court found that “no power to abrogate the prohibition was conferred upon the county by section 4 of the Westchester County Charter. . .[that section] must be construed as a general grant of local administrative power and not as authority permitting the abrogation of a general State law forbidding a tax, fee, license or permit for the use of the public highways.” Id. at 231-232. This case is thus inapposite and inapplicable. The Common Sense Act amended a special law, contained only in the County's own Administrative Code, and was indisputably not a general law. Nor does The Common Sense Act purport to abrogate an express prohibition contained in a general law. To the contrary, it merely aligns the County with existing general State law (RPTL §726). Thus,16 3400112640-1 Respondents’ attempt to analogize the facts and holding in People v. Westchester County to this case, is completely misplaced. D. Respondents’ Argument That Taxation Is A Preempted State Function Overlooks The Specific Powers Over Taxation Granted To The County Respondents cite no authority, because there is none, holding that when the State legislature has granted a locality the power to enact local laws, pursuant to its authority under Article IX, §1 of the Constitution (alternative form of government), including a delegation of the authority to “levy” and “assess” taxes (AC87, at §103[6]), “administer” those activities (AC86, §103[2]), the power to make a “plan” for “the assessment of property for tax purposes, the making of appropriations, the period for which appropriations are made, the levy of taxes, [and] the collection of taxes” (AC103-104, at §2201), and all the other ample and broadly-defined powers which Nassau County was given, that is somehow not a sufficient grant of powers to enact The Common Sense Act, which involves those very same taxation matters. Respondents argue that because taxation is a matter of State concern, the County had no authority to enact The Common Sense Act affecting tax refund obligations. Of course the right to tax is a state function which requires express conferral of authority, but it is a function which nonetheless can be delegated to a The Hafner Appellants misconstrue In re Wadhams' Estate, 249 A.D. 271, 292 N.Y.S.17 102 (4th Dep’t 1936), which did not involve a local law at all, or discuss a county’s authority to enact a local law concerning refunds. In addition, the “refund” in that case was monies refunded to a person who purchased property at a tax sale auction, when after the auction it developed that the property owner was not delinquent on taxes at all because a certain tax was found illegal. The discussion related to school districts’ concerns over uncollected taxes, which implicate different rules than those that apply to collected taxes which are later challenged in certiorari proceedings. Uncollected taxes are subject to wholly different rules because school districts do not sell tax liens. Instead, most tax schemes provide that the county pays to the school district whatever portion of taxes went uncollected, and the county recovers that sum by placing a lien on 3500112640-1 locality, as the State Legislature did here. “While the power to tax is vested solely in the State Legislature (N.Y. Const., art. III, § 1; art. XVI, §1), the Legislature has delegated to its municipal subdivisions the authority for them to assess and collect their own authorized taxes.” 41 Kew Gardens Road Associates v. Tyburski, 70 N.Y.2d 325, 332, 520 N.Y.S.2d 544, 551 (1987). So here, the power to levy and assess taxes and to create a plan for all aspects of the taxing process was expressly given to the County in its Charter at Sections 103 and 2201, as well as the other discussed provisions of the Local Legislation Act. The State Legislature granted the Count authority to levy and collect its own taxes and to enact a regulatory plan over all of its aspects. See DJL Restaurant Corp. v. City of New York, 96 N.Y.2d 91, 725 N.Y.S.2d 622 (2001)(“Local laws of general application –which are aimed at legitimate concerns of a local government–will not be preempted if their enforcement only incidentally infringes on a preempted field”). Accordingly, Respondents’ arguments17 the property and holding a tax lien auction. The County Guaranty and The Common Sense Act do not concern uncollected (delinquent) taxes; they concern collected taxes actually paid to the taxing districts which must later be refunded to the property owner. 3600112640-1 concerning alleged “preemption” over tax legislation are meritless. In an attempt to bolster this meritless argument, Respondents erroneously contend that the power to tax is not a home rule power, citing to a string of cases and treatises. (Town Br., pp. 20-22) This is a red herring. The County is not contending that the power to tax is a “home rule power” under Article IX, §2 of the Constitution. Rather, as stated earlier, the power to tax is a state function that the State may delegate, as it does to counties that have elected an alternative form of government under Article IX, §1, as the County of Nassau did in 1937. The Respondents’ continuing wrongful focus on “home rule powers” as opposed to the independent broad powers of local legislation granted to the County under the Local Legislation Act when it elected an alternative form of government under Article IX, §1(h), is simply erroneous and without merit, as a matter of law. E. Respondents’ Contention That The State Legislature Did Not Delegate Local Powers of Taxation Until The Amendments To The 1963 Constitution Is False The School District Appellants argue, erroneously, that the State did not delegate local powers of taxation to counties until the amendments to the 1963 Constitution, and the enactment of Article IX, §2(c)(ii)(8). See Baldwin Brief, pp. 3700112640-1 60-61. This contention is again based on the false premise that Article IX, §2 of the 1963 Constitution is the only source of the County’s powers of local legislation. It also completely ignores the independent delegation of powers from the State Legislature to the County pursuant to former Article IX, §2 of the 1938 Constitution, now renumbered in the current Constitution as Article IX, §1(h), as an alternative form of government, as evidenced in the Charter and Administrative Code, including the full delegation of powers of local taxation. However, Article IX, §2(c)(ii)(8) did delegate local powers of legislation over taxes for the first time to all other units of local government, i.e. counties who have not elected an alternative form of government, villages, towns, etc. It did not limit or abrogate, however, the powers already delegated to the County of Nassau under Article IX, §1(h), and the savings clause in Article IX, §3(b) 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.” 3800112640-1 F. Respondents Offer No Analysis Of The Alternative County Government Provisions Of The Constitution As established in Appellants’ Brief and above, Nassau County’s powers of local legislation are derived not only from the powers granted to all units of government (including counties) in Article IX, §2, implemented by MHRL §10. The County is also an alternative form of county government, and was granted such powers as the State Legislature saw fit to grant in the statute defining the powers of the alternative county. Current Article IX, §1(h) of the Constitution states that the State Legislature may grant local powers to whatever extent the legislature desires. The 1923 and 1938 Constitutions also gave the legislature the same authority to confer on any county it chose whatever powers the legislature wanted. (AC1-2, 18-19, 37-38). Simply stated, the intent of the legislature when it granted Nassau County powers of local legislation is a function of what the legislature provided pursuant to alternative county law, and not merely the powers granted to all counties in the absence of such an alternative county government. In this regard, and incredibly, Respondents offer virtually no Section 1 Analysis concerning the alternative county government provisions of the New York Constitution under which Nassau County’s charter and powers exist. Article 3900112640-1 IX, §1 of the current New York Constitution, like its predecessor in the 1938 Constitution (Art. IX, §2 of the 1938 Constitution, at AC18-19), by its own terms specifies that the State Legislature grants to alternative forms of county government whatever different and greater powers it wants to grant them, and it does so in the law creating that alternative form of government. N.Y. Constitution, Art. IX, §1 (AC37-38)(“(h)(1) Counties ... shall be empowered by general law, or by special law ... to adopt, amend or repeal alternative forms of county government provided by the legislature”); see also N.Y. Constitution, Art. IX, §2(c)(AC38)(“In addition to powers granted in the statute of local governments or any other law ....”). This crucial distinction was made clear in Heimbach v. Mills, 67 A.D.2d 731, 412 N.Y.S.2d 668 (2d Dep’t 1979), wherein the Court held: “Section 2 [of Article IX 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)(emphasis added); see also Rozler v. Franger, 61 A.D.2d 46, 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 ‘(i)n addition to powers granted in the statute of local governments or in any other law.’”) The Town Appellants acknowledge the alternative county government provisions of the18 Constitution, and do not take issue with the point that under those constitutional provisions, the Legislature could confer on a county whatever local authority it desires (Town Br., p. 21). Instead, Respondents make the demonstrably false argument that the State Legislature did not confer such powers on Nassau County. However, this contention is belied by what the State Legislature actually enacted. 4000112640-1 With respect to Nassau County, the State Legislature specifically and expressly stated that the powers it was granting to the County were meant to be “full and complete” as allowed by the Constitution and that the conferral of these powers “shall be construed liberally.” (AC109-110, 120, at §162). This is overtly and distinctly different from the rule of construction expressed in MHRL §50 for all governments in the absence of such statutes. In effect, Respondents ask this Court to ignore the State’s legislative intent to accord broad powers, and ignore the State Legislature’s grant of broad powers.18 G. Respondents Also Fail To Overcome The Express Supersession Powers Given To Nassau County Respondents cite no authority whatsoever – not any case law or statute or even commentary – to support their and the Appellate Division’s argument that the express authority granted in Section 151 of the Local Legislation Act, empowering Nassau County to supercede state special laws so long as they meet identified criteria, is somehow meaningless and provides a mere “procedure” for supersession, but is not authority to supercede. The plain text of that section 4100112640-1 irrefutably demonstrates otherwise (AC107). In fact, the text of Section 151 stands in stark contrast to the contents of MHRL §22. MHRL §22 is contained only in the MHRL Article addressed to “Procedure for Adoption of Local Laws;” it contains the express statement “No local law shall supersede any provision of a state statute except as authorized by the constitution, this chapter or any other state statute,” MHRL §22(2), and it does not in any manner indicate what types of laws, if any, are subject to supersession. By contrast, Local Legislation Act §151 is contained in an Article entitled “Local Laws.” It has no limitation stating that it is not conferring supersession powers. It comes directly after the conferral of express “Power to adopt and amend local laws” and incorporates that “local law” term and enactment authority (§150), and it specifies that this supersession authority can be applied to any law which “does not in terms and in effect apply alike to all counties” and that it cannot be invoked with respect to general laws which apply to all counties. The ensuing section, Section 154, defines the only other limitations on the enactment of “local laws” and “such local laws” “which supersedes a state statute now in force or hereafter enacted by the legislature,” none of which concern tax refund obligations under the County Guaranty. (AC107-108 )(emphasis supplied); see also footnote 11, supra. 4200112640-1 POINT II IN ADDITION, ARTICLE IX, §2(C)(II) OF THE CURRENT CONSTITUTION AUTHORIZES THE COUNTY TO ENACT THE COMMON SENSE ACT AS A MATTER OF LAW; MOREOVER, MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(8) EXEMPTS LOCAL LAWS RELATED TO PROPERTY TAXES FROM HAVING TO BE CONSISTENT WITH ANY OTHER LAWS In addition to possessing the express authority in its Charter (through the state enabling legislation of the Local Legislation Act under Article IX, §1(h)) to enact The Common Sense Act, the County had the authority both under Article IX, §2 of the current State Constitution, and even more plainly, under MHRL §10(1)(ii)(a)(8). That section expressly empowers all counties to enact local laws concerning the “levy and administration of local taxes” which do not conflict with general laws and expressly provides that when such taxes are property taxes the local laws are not required to be “consistent with laws enacted by the legislature.” See Sonmax, Inc. v. City of New York, 43 N.Y.2d 253, 401 N.Y.S.2d 173 (1977). In this Reply Brief we address the latter point based on the MHRL first, because it is the least complicated and removes the question of what “consistent with laws enacted by the legislature” means. In Sonmax, this Court compared the provisions of Article IX, §2(c)(ii) with the provisions implementing it contained in MHRL §10(1)(ii)(a)(8). The Court 4300112640-1 pointed out that this MHRL subdivision “very largely tracks the constitutional terminology, except” that it does not impose the obligation that a local law concerning the levy or administration of taxes be “consistent with laws enacted by the legislature” in relation to cities. This made all the difference in the Sonmax case, just as it must in this case, because the same subdivision of that MHRL section also expressly exempts county property taxes from having to be “consistent with laws of the legislature.” MHRL §10(1)(ii)(a)(8), in fact, expressly grants counties and other local governments full local lawmaking authority over the levy and administration of local property taxes consistent with general laws only, and expressly provides that only local laws pertaining to non-property tax levy or administration need to be consistent with the “laws” of the legislature: “1. In addition to powers granted in the constitution, the statute of local governments or in any other law, . . . (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: 4400112640-1 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. Id. (emphasis supplied) Thus, this section authorized a county, city, town, or village to enact local laws relating to the levy and administration of local taxes which authority was circumscribed only by the caveat that they be “consistent with laws enacted by the legislature.” Subsection 8 then carved out two exceptions to this rule: (i) it exempted cities from the requirement that its local laws be consistent with “laws enacted by the legislature; and (ii) it exempted counties, towns, and villages from the requirement that its local laws relating to “local [] property taxes” be consistent with “laws enacted by the legislature.” Rather, with respect to those two areas, the local government could enact local laws which were “not inconsistent with the provisions of the constitution or not inconsistent with any general law.” In Sonmax, the Court applied the first exemption (applicable to cities) and held that because the city law there was consistent with the general law (Real Property Tax Law), the local law was valid. The Court may now apply the second 4500112640-1 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, and declare The Common Sense Action valid in all respects. Remarkably absent from all Respondents’ Briefs, including the lengthy brief submitted by the Baldwin Appellants, is any analysis of this property tax exception from the “consistent with state laws” requirement contained in MHRL §10(ii)(1)(a)(8), and that subsection’s express conferral of local lawmaking authority concerning the levy and administration of taxes consistent with only general law. Thus, in addition to the irrefutable plain text of the statute, it is unchallenged that MHRL §10(1)(ii)(a)(8) authorizes local legislation by counties concerning the “levy and administration” of taxes consistent with the general law only, and does not limit that authority to having to be “consistent” with other laws of the state when it comes to property taxes. The Common Sense Act exclusively concerns real estate property taxes. In addition, as even the Appellate Division appears to have held below (JRxx), The Common Sense Act exclusively concerns the “levy and administration” of such property taxes. Lehigh Valley R. Co. v. Joseph, supra (“We deem it quite clear that under the broad delegation of the power of tax administration” under the home rule provisions of the Constitution and the City Home Rule Law “the City The Baldwin Appellants’ reliance on Bugeja v City of New York, 24 A.D.2d 151, 26619 N.Y.S.2d 80 (2d Dep’t 1965), aff’d, 17 N.Y.2d 606, 268 N.Y.S.2d 564 (1966) is unavailing and does not stand for the proposition stated. 4600112640-1 was authorized to provide for [tax] refunds without interest” even though the statutes made no mention of tax refund interest)(emphasis supplied); Fire Dept. of City of Rochester v. City of Rochester, supra. Accordingly, as a matter of law this MHRL section empowered the County to enact The Common Sense Act with the only restriction that the Act be consistent with general laws of the State. With respect to whether the current State Constitution itself at Article IX, §2(c)(8) also grants Nassau County the authority to enact The Common Sense Act – that is, a grant of authority over and above the grant of authority in its Charter through the Local Legislation Act, and over and above MHRL §10(1)(ii)(a)) – Respondents have failed to cite a single case which defines the phrase “consistent with laws enacted by the legislature.” If by that phrase the drafters of the19 Constitution meant special laws and general laws, they would have used those terms, which are specifically and deliberately defined in Article IX, §3, and used throughout Article IX. Notably, none of the Respondents adopt the Appellate Division’s rationale for concluding that the term “laws” means special and general laws. The Appellate 4700112640-1 Division claimed that City of White Plains v. Del Bello, 87 A.D.2d 483, 452 N.Y.S.2d 71 (2d Dep't 1982), and this Court’s holding in Sonmax, supra somehow established that “laws” meant special and general laws. (JR xx). As established in Appellants’ Brief, neither of these cases contain such a holding. City of White Plains did not involve a special law at all, but only a general law, and the Court construed the phrase “consistent with laws” to mean consistent with state general law. None of the Respondents’ Briefs even cite City of White Plains, on which the Appellate Division primarily relied, and which stands for the exact opposite of what the Appellate Division found. In addition, this Court, like the Appellate Division in City of White Plains, has repeatedly construed the term “consistent with laws” to mean general laws. 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); 41 Kew Gardens Road Assoc. v. Tyburski, supra at 332. As to Sonmax, it also concerned a claim that the local law was inconsistent with a general law, and this Court did not construe the term “consistent with laws enacted by the legislature” as meaning anything else. Id. at 257-258 (“The core of petitioners' challenge [is] ... that the local law is inconsistent with such general law”). For example, this Court may hold that the term means consistent with laws which20 affirmatively prohibit enactment of a law concerning the particular topic. Thus, it could mean almost the same as “except to the extent that the legislature shall restrict the adoption of such a local law” contained in Article IX § 2(c), but without being limited to future affirmative restrictions as is the latter phrase (i.e. “consistent with laws” means existing and future affirmative restrictions on the passage of a local law on the subject, and is not limited like the future-tense “shall restrict” phrase). Similarly, it may have been the means by which the Constitution dealt with charter governments – which laws are not “consistent” even with the general law. Heimbach v. Mills, supra. The term “consistent with laws enacted by the legislature” would, in the case of a charter government, mean so long as the local law is not contrary to or prohibited by the charter or its enabling legislation. In either case, The Common Sense Act would be authorized even by the Constitution, because the Nassau County Charter does not contain an affirmative restriction on adoption of a local law on the subject topic (it contains affirmative restrictions on other topics, including concerning other aspects of taxation, but not any restriction concerning who bears the cost of property tax refunds (AC108, at §154), and the Act is not in any manner contrary to or 4800112640-1 Whatever the phrase “consistent with laws enacted by the legislature” employed in the Constitution means, it clearly does not mean special and general laws; to the contrary, in the cases applying it, it has been held to mean only general laws. Further, whether or not the language “consistent with laws enacted by the legislature” means general and/or special laws, MHRL §10(1)(ii)(a)(8) is such a “law[] enacted by the legislature” empowering the County to enact a local law concerning the administration and levy of local property taxes that need only be consistent with general laws. As a final observation, it is noted that the “consistent with laws” phrase could be construed by this Court to mean something else entirely, not tied to general or special laws. Accordingly, in addition to the express authority20 prohibited by the County Charter or its enabling legislation. In relevant part, MHRL § 34(3)(a)(3) provides:21 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 supersede 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 benefit assessments; 4900112640-1 provided by the Local Legislation Act, the County was granted authority to enact The Common Sense Act by MHRL §10(1)(ii)(a) and by Article IX, §2(c)(8) of the Constitution. POINT III RESPONDENTS’ REMAINING CHALLENGES TO THE COMMON SENSE ACT ARE ALL MERITLESS As established below, Respondents’ arguments resting on MHRL §34 are completely meritless because that section in no way eliminates the broad powers of local legislation granted to the County elsewhere. Respondents’ myriad remaining attacks on The Common Sense Act, most of which are frivolous, and none of which were adopted by the Appellate Division, are also addressed below. A. Respondents' Arguments Based On MHRL §34 Are Meritless Like the Appellate Division, Respondents erroneously rely on MHRL §34(3)(a)(3). As a threshold matter, MHRL §34 contains an express limitation21 MHRL § 34(3)(a)(3) only concerns amendments to a “county charter” or to a “charter22 law,” which is defined as “A local law providing, amending or repealing a county charter, or transferring a function or a duty pursuant to section thirty-three-a of this chapter.” MHRL §32(2). The repealed County Guaranty was expressly placed by the County and the state legislature only in the County’s Administrative Code and not in its Charter (see Laws of 1948, Ch. 851)(AC123)(“An act to amend the Nassau county administrative code”). Accordingly, its removal therefrom simply does not fall within the ambit of MHRL §34(3) as a matter of law. 5000112640-1 that it 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”). This MHRL section therefore does not limit the powers of local legislation and of supersession granted to the County. In this regard, the Appellate Division wrongly refused to apply MHRL §35, a savings clause, 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. Were that not enough (which it irrefutably is), MHRL §34(3)(a)(3) is addressed to charter amendments, and has no application to the removal of the County Guaranty from its Administrative Code, and that removal is fully consistent with, and not contrary to, any provision of the County Charter. 22 Thirdly, and in any event, the section contains no restriction concerning removal of a law which pertains to allocation of tax refunds. Instead, the section concerns only “the imposition, judicial review or distribution of the proceeds of 5100112640-1 taxes or benefit assessments.” Obviously the repeal of provisions relating only to the proportional obligation for tax refunds does not concern “imposition” of a tax or “judicial review” thereof. It also does not relate to “distribution of the proceeds of taxes” when no “proceeds” are distributed to taxing authorities by a refund. Heimbach v. Mills, supra (MHRL §34(3)(a) has no application to a charter provision concerning the setting of tax equalization rates). The term “distribution of proceeds” relates to which taxing authority receives collected taxes and when; it has nothing to do with over-assessments and allocation of responsibility for refunds. See Tax Law §261 (entitled “Payment over and distribution of taxes” which exclusively concerns to which authority the collected taxes are given (distributed) and when they are given). B. Respondents' Education-Based Arguments Are Meritless. Grasping at straws, Respondents erroneously contend the County had no authority to enact The Common Sense Act because it runs afoul of Article IX, §3 of the Constitution and would impermissibly and adversely impact the “maintenance, support or administration” of public schools. In an even more obvious ploy to garner sympathy, Respondents falsely state that repeal of the County Guaranty would “have a severe detrimental impact on children attending public schools in Nassau County.” (Hafner Br., p. 31; Baldwin Br., pp. 78-83) 5200112640-1 Such hyperbole is unwarranted. First, Respondents’ threshold argument – that any local legislation with a financial “impact” on school districts impermissibly affects the public school system in violation of Article IX, §3(a)(1) of the Constitution – is completely without merit. That section of the Constitution merely preserves the legislature’s authority to enact laws, it does not strip local governments of authority (“nothing in this article shall restrict or impair any power of the legislature in relation to. . . .”) Respondents cite no case law in support of their proposition, other than a few cases holding that education is a matter of state concern on which the state may legislate even if the legislation is of localized application. This does not mean that local governments are divested of their own power to legislate, but rather, as in the formulation of this Court in the landmark home rule case of Adler v. Deegan, 251 N.Y. 467, 491 (1929), this is one of the many areas in which the state and localities have “concurrent jurisdiction.” This conclusion is supported by the language of Article IX, §3(a) of the Constitution, which does not restrict local legislation, but rather provides that “nothing in this article shall restrict or impair any power of the legislature.” The even more fundamental flaw in Respondents’ argument, is their curious attempt to define any local law with a financial impact on school districts as 5300112640-1 “educational” legislation. For the same reasons, Respondents’ claim that The Common Sense Act runs afoul of the analogous provisions in MHRL §§11(1)(c) and 34(3)(b) restricting local legislation relating to the “educational system” are equally devoid of merit. The Common Sense Act is not addressed to the educational functions of the state. Board of Educ. of Middle Country School Dist. at Centereach v. Cohalan, 135 Misc.2d 358, 359-360, 515 N.Y.S.2d 691 (Sup. Ct. Suffolk Cty. 1987). Moreover, if Respondents’ fanciful contention were true – that any local law having a financial impact on school districts is prohibited – no local law involving property taxes could ever be enacted, because school districts receive the vast majority of such taxes. This would mean that the express grants of local authority to “levy taxes,” see e.g. the Local Legislation Act, §103 (AC87) would be meaningless. Notably, virtually every other school district in this State is responsible for their proportionate share of tax refunds in the event of an overassessment. The school districts pay such refunds pursuant to state law, Real Property Tax Law §726, and have adjusted their budgets accordingly. There is nothing “special” or unique about the school districts in Nassau County that could possibly justify the continuation of the County Guaranty – the students in 60 other counties in New The Hafner Appellants bizarrely contend that the enactment of the County Guaranty23 aligned the County with “general State policy at the time” in 1948, citing to In re Wadham’s Estate, 249 App. Div. 271, 292 N.Y.S. 102, 108-109 (4 Dep’t 1936)(Hafner Brief, pp. 11-12). th This is not only false, but Wadham’s Estate only concerned a school district’s concern over uncollected taxes, which implicate different rules than those that apply to collected taxes which are later challenged in certiorari proceedings. As set forth in Appellants’ Brief at pp. 25 to 26, this amendment to the County Charter24 concerned the ministerial task of “extending taxes” and had nothing to do with tax refunds. (JR594-610); 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). 5400112640-1 York State somehow manage to comply with state law and pay their proportionate share of refunds. Far from shocking, the County simply repealed the County Guaranty to align Nassau County with the other counties in the State of New York, and with the general law of the State of New York, the RPTL. Indeed, the repeal23 of the County Guaranty – which merely aligns the County with the law of the State of New York – no more impermissibly affects “education” than does the RPTL itself. C. The County Guaranty Was Set Forth Exclusively In The Nassau County Administrative Code, Not The Charter. In their various Briefs, Respondents quote Charter §606 (formerly §607) and note it was enacted about the same time as the County Guaranty provisions in the Administrative Code. Certain Respondents also claim that the County24 Guaranty was embodied in Charter §606, in addition to the Administrative Code (Hafner Brief, p. 6). This is demonstrably false. Not only did Charter §606 have 5500112640-1 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). In fact, as both this Court and the Appellate Division have recognized in every one of their decisions concerning the County Guaranty, it was 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, 449, 451-52 (2008); Matter of Bowery Sav. Bank v. Bd. of Assessors of the County of Nassau, 80 N.Y.2d 961, 964 (1992); New York Tel. Co. v. Supervisor of Town of N. Hempstead, supra p. 4, 77 A.D.3d at 122, 125- 26; Matter of Pall Corp. v. Bd. of Assessors of County of Nassau, 41 A.D.3d 722, 723-24 (2d Dep’t 2007), aff’d,10 N.Y.3d 445 (2008); Bd. of Educ. of Glen Cove City School Dist. v. Nassau County, 33 A.D.3d 576, 578 (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 (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 (2d Dep’t 1989). Not a single one of these cases ever identified Charter §606 as a source of the Guaranty. While the provision of Charter §606 cited by Appellants was, like Administrative Code § 6-26.0(b)(3)(c), enacted in 1948, though in a different Along with repealing the County Guaranty and related provisions of the Administrative25 Code, the Common Sense Act (Local Law 18-2010) repealed this anachronistic rounding provision of Charter §606, because it no longer served any purpose and it was anticipated that Respondents would argue that its continued presence in the Charter required maintenance of the County Guaranty. 5600112640-1 chapter law (Chapter 98), it had nothing to do with liability for tax refunds. Rather, as the Court explained in New York Telephone Co. v. Town of North Hempstead, supra, it “was meant to cover discrepancies between . . . budgets and . . . taxes collected . . . due to computation rounding errors.” Id. at 126 (citing Bill Jacket, Laws of 1948, Ch. 98; see JR 607-10). The extension of taxes is a ministerial process involving application of the tax rate to assessed value and entry of the resulting tax on the assessment roll. In the pre-computer age, rounded tax rates were sometimes used to make computation easier, resulting in minor discrepancies between tax levies and collections. (JR 607). For convenience, the Laws of 1948, Ch. 98, amended Charter §606 to credit or debit any such rounding discrepancies to the County.25 D. A Referendum Is Not Required. As the Supreme Court below pointed out, “petitioner[s’] argument that a referendum is required is misplaced [when there] is no provision in any local law or any other law of the State including the constitution requiring a referendum in connection with the subject matter of this litigation.” (JR11). It is wrong to 5700112640-1 assume that government by representation does not apply whenever a county passes a law which has an impact on the finances of school districts or smaller local governments. Under The Common Sense Act, the function and duty of conducting assessments remains with the County, as do all other previously existing functions and executive duties. (AC154). In addition to there not being any transfer of “function” or “duty,” it is notable that both Article IX, §1 and MHRL §32 pertain only to charter amendments, not amendments to the County’s Administrative Code which are consistent and not prohibited by the existing charter. Town of Smithtown v. Howell, 31 N.Y.2d 365, 376, 339 N.Y.S.2d 949 (1972)(“The distinction between ‘local law’ and the ‘charter law’ in [a certain legislative history] is important since only ‘charter law’, as defined by section 32 (subd. 2) of the Municipal Home Rule Law, must be passed by the double referendum system”); Astwood v. Cohen, 291 N.Y. 484 (1944). Moreover, as shown, numerous provisions of the County Charter authorize the adoption of a “plan” whereby property tax refunds are ultimately funded by the taxing entity who actually received the refunded monies, and in fact that rule governed for decades before the adoption of the County Guaranty in 1948. See Section 2201 of the Local Legislation Act (AC103-104) and Charter (AC225). 5800112640-1 These provisions of the County Charter, placed there by the Local Legislation Act, were clearly lawful when enacted and preclude any claim that they infringe the rights of smaller governments within the County. Nassau County v. Inc. Village of Woodsburgh, 86 A.D.2d 856, 447 N.Y.S.2d 326 (2 Dep’t 1982), aff’d, 58 N.Y.2d 996, 461 N.Y.S.2d 1008 (1983); Inc. Village of Atlantic Beach v. Town of Hempstead, 27 A.D.2d 556, 276 N.Y.S.2d 4 (2d Dep’t 1966), aff’d, 19 N.Y.2d 929, 281 N.Y.S.2d 337 (1967). E. Respondents’ Remaining Arguments Are Frivolous. Respondents mount several other challenges to The Common Sense Act, contending it violates the doctrine of legislative equivalency, the Statute of Local Governments, is arbitrary and capricious, and, most puzzlingly, that the provision of the new law requiring that the towns and districts receive notice of tax certiorari proceedings, since they will now be responsible for their proportionate share of any refunds awarded in these proceedings, is invalid. These claims are all meritless. The legislative equivalency claim is frivolous. As noted above, it is clear that a special law enacted by the Legislature may be superseded by a local law, Sonmax, Inc. v. City of New York, supra; Matter of Gizzo v. Town of Mamaroneck, 36 A.D.3d 162, 824 N.Y.S.2d 366 (2d Dep’t 2006); Landmark 5900112640-1 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), and Respondents cite no cases that have applied the legislative equivalency doctrine in such a situation. Equally specious is Appellants’ contention that enactment of The Common Sense Act was barred by the Statute of Local Governments because the 1948 County Guaranty was enacted pursuant to a home rule message from the County. The home rule message process is a limitation on the State legislature’s authority to enact special laws concerning the property, affairs and government of localities – it is not a means of creating some new form of special law immune from being changed or superceded. See e.g. Greater New York Taxi Ass'n v. State, 21 N.Y.3d 289, __ N.Y.S.2d __ (2013). Next, Respondents assert that The Common Sense Act is arbitrary, capricious and irrational. In making this assertion, Respondents do not claim any particular alleged constitutional defect, such as a violation of due process or equal protection, but merely allege that the repeal of the County Guaranty was irrational as a matter of policy. Respondents thus suggest that legislative enactments are subject to the same low-threshold Article 78 challenges as are administrative actions, but cite no case law in support of this proposition. All of the cases cited by Respondents involve either challenges to administrative actions, or contentions 6000112640-1 that legislative enactments violated specific constitutional rights. This case law, or lack thereof, reflects that while courts may need to assess the rationality of legislation as part of an analysis of whether it comports with due process, equal protection or other specific constitutional requirements, and may also appropriately review the rationality of unilateral administrative action in Article 78 proceedings, they are not empowered to sit as super-legislatures reviewing the wisdom of the legislative policy judgments of elected representatives. For this reason, even when legislation is challenged on specific constitutional grounds it is entitled to a strong presumption of constitutionality, including a presumption that the legislative body acted with reason rather than from mere whim or caprice. See Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876 (1965); Farrington v. Pinckney, 1 N.Y.2d 74, 88, 150 N.Y.S.2d 585 (1956); cf. Friedman v. Cuomo, 39 N.Y.2d 81, 83, 382 N.Y.S.2d 961 (1976)(constitutionality of legislative enactments may not be challenged in Article 78 proceedings). Where, as here, legislation is challenged on Article 78 “arbitrary and capricious” rather than constitutional grounds, the claims must be dismissed. In any event, The Common Sense Act is the epitome of rationality, as it made no sense for the County to continue to refund millions of dollars in tax revenues that it never received. Indeed, the empirical data available both from the State Board of Taxation and Finance26 and from studies published in the media reflect that the number of tax certiorari challenges and refunds in Nassau County are about the same or less than those of Suffolk County and are close to those of Westchester County. See 2001-2011 Tax Certiorari Activity Report of the NYS State Board of Taxation and Finance, published online at WWW.TAX.NY.GOV/RESEARCH/PROPERTY/ REPORTS/SCARCERTIORARI/ CERTIORARI01_11.HTM (last visited 9/13/13); 2001-2011 Small Claims Assessment Review Activity Report of the NYS State Board of Taxation and Finance, published online at WWW.TAX.NY.GOV/RESEARCH/PROPERTY/ REPORTS/SCARCERTIORARI/ SCAR01_11.HTM (last visited 9/13/13); see also J. Hildebrand, May 5, 2009 Newsday, Town governments in both counties are flooded by challenges that may lead to some surprising 6100112640-1 The Town Respondents argue that The Common Sense Act is irrational because it will not “fix the broken assessment system” or lower taxes. (Town Br., p. 32) This is irrelevant and misleading. The purpose of The Common Sense Act is not to fix the assessment system or lower taxes, but to align the County with state law concerning the proportional payment of tax refunds. The Respondent School Districts assert that successful challenges to tax assessments are more than merely a function of democratic government with the right of property owners to petition for corrections. Rather, Respondents argue that tax refunds may constitute a governmental failing of high order. (See Baldwin Brief, pp. 1-4) Such a claim is meritless. Respondents offer no actual figures or facts reflecting that the per capita volume of tax refunds in Nassau County, particularly during this period of extreme declines and fluctuations in property values, are in any manner markedly different from other similarly situated counties with similar property values.26 increases (the number of challenges in Suffolk County hit an all-time high; the increase in challenges in all of Long Island is due to three factors, high property values and concomitant taxes, declining property values, and the “spawn[ing of] a growing industry of firms that appeal assessments on behalf of homeowners” on the Island); C. Matthews, July 13, 2013, The Journal News Online (lohud.com), Businesses [in Westchester County] carve millions in tax refunds from schools; old assessments blamed, published online at WWW.LOHUD.COM/ARTICLE/ 20130715/NEWS02/307150011/BUSINESSES-CARVE-MILLIONS-TAX-REFUNDS-FROM-SCHOOLS- OLD-ASSESSMENTS-BLAMED (last visited 9/13/13). 6200112640-1 Respondents next argue that because, inter alia, the County allegedly “admitted” in 1948 it could not enact the County Guaranty by local law, but required a special act of the Legislature to do so, that such was an “admission” that it has no local powers of legislation. (See Hafner Brief, pp. 7, 11; Baldwin Brief, pp. 85-88) This is frivolous. The reason why the County needed a special act of the legislature in 1948 is simple. The Guaranty was inconsistent with a general law, former Tax Law §296(1), the predecessor of the RPTL §726(1) charge-back requirement, and thus under Article IX, §§2(b)(2) & 2(c) of the Constitution, could only be enacted by the State Legislature by special law pursuant to a home rule request. By contrast, repeal of the Guaranty was not inconsistent with any general law, but in fact expressly brought County law in line with the general law set forth in RPTL §726(1). Therefore the County could act by local law pursuant to either of its alternative sources of authority. Finally, and inexplicably, Respondents assert various claims attacking the 6300112640-1 validity of Section 4 of The Common Sense Act (JR 58), which amended Administrative Code §6-17.3 to require that the towns and school districts receive notice of tax certiorari proceedings, as do towns and school districts throughout the rest of the state, since, like towns and school districts in the rest of the state, they will now be responsible for their proportionate share of any refunds awarded in tax certiorari proceedings. Respondents’ claims are baseless when there is nothing in law which could possibly preclude a County from requiring itself to provide notice. Additionally, Respondents’ argument that the Common Sense Act is in conflict with RPTL §§ 708 and 712(2-a), is patently erroneous. Nothing in those sections prohibits school districts from receiving notice under a local law, and nothing in those sections prohibits a school district from petitioning to intervene in a tax certiorari proceeding after receiving the now mandatory notice to school districts required under Nassau County Administrative Code § 6-17.3 (AC 155). Moreover, it is notable that The Common Sense Act contains a severability clause (JR59), and therefore even if Respondents had successfully challenged Section 4 (which they have not) the remainder of the law repealing the County Guaranty would remain, leaving Respondents with no notice of the claims against them - an unfair and undesirable result. 6400112640-1 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 September 19, 2013 Respectfully submitted, //S// Ronald J. Rosenberg, Esq. Rosenberg Calica & Birney LLP Special Counsel for the County of Nassau, the County Legislature, and County Executive Edward P. Mangano 100 Garden City Plaza, Suite 408 Garden City, New York 11530 (516) 747-7400 Of counsel: Ronald J. Rosenberg, Esq. Lesley A. Reardon, Esq. Judah Serfaty, Esq. -and- Nassau County Attorney’s Office One West Street Mineola, New York 11501 (516) 571-3056