Upon the following papers read on this motion for declaratory judgment, among other things ; Notice of Motion/Order to Show Cause and supporting papers NYSCEF Doc Nos 1-4 ; Notice of Cross Motion and supporting papers: ; Opposing papers: NYSCEF Doc No 21 ; Reply papers NYSCEF Doc No 24 ; Other Amicus Memorandum (NYSCEF Doc No 17); Defendants’ Letter Regarding Mootness (NYSCEF Doc No 23); Defendants’ Supplemental Memorandum of Law as to Mootness in Opposition (NYSCEF Doc No 25) ; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion (#001) by the plaintiff for, among other things, a declaration of a full floor vote on a judicial appointment to the Court of Appeals, is granted, as set forth below; and it is further ORDERED that the written and oral application by the defendants for, among other things, dismissal of the complaint, is denied; and it is further ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR §202.5-b(h)(2). “The governor shall appoint, with the advice and consent of the senate…” To the average person, the language is clear and unambiguous. However, an unnecessary constitutional crisis arose in the past month, which has left the New York State Court of Appeals without a Chief Judge and the entire State Judiciary without desperately needed leadership. And yet, the constitutional issues are not complex. To the contrary, the issues are quite easy to resolve. It is time for this constitutional logjam to be broken asunder. The underlying challenged procedure, recently adopted by the defendants, is not authorized by the New York State Constitution and is therefore declared to be unconstitutional. This is an action seeking a declaration that plaintiff, a sitting member of the defendant New York State Senate, is entitled to a full floor vote on a judicial nomination to the Court of Appeals under the dictates of the New York State Constitution. Mootness Claim As to the newly raised issue by the defendants of mootness, on the afternoon of February 15, two days before the scheduled hearing on this matter, the defendant, New York State Senate (“Senate”) voted, as a full body, to reject the appointment offered by the Governor for the position of Chief Judge of the Court of Appeals. As a result thereof, the defendants now contend that this action is moot. However, after oral argument on February 17, 2023, the Court has decided that the exceptions to the mootness doctrine apply (see Quinn v20 East Clinton LLC, 193 AD3d 893 [2d Dept 2021]; Matter of Hearst Corp. v. Clyne, 50 NY2d 707, 714-715 [1980]). Here, the issues raised by plaintiff are not only substantial and novel — with the defendants failing to show that their relied upon internal Senate rule had previously been used with regard to appointments to the Court of Appeals — but the issues are also likely to recur. At the hearing held on February 17, 2023, as articulated by counsel for the defendants during his application for dismissal, he conceded that the defendants would employ the same internal rule of the Senate with regard to the next Chief Judge appointment to be submitted by the governor. Defendants refused to stipulate to the submission of the appointment to the full Senate. The governor’s new appointee will be before the Senate within the next 120 days. Since the rights of the parties will be affected by this decision, the matter is not moot. With the future appointment facing the same issues, the issues in this action fall within the exceptions to the mootness doctrine and should be considered by this Court (see City of New York v. Maul, 14 NY3d 499, 507 [2010]). Similarly, in Winner v. Cuomo, 176 AD2d 60 (3d Dept 1992), wherein members of the New York State Assembly sought court clarification on when the Governor’s budget bills are to be submitted under the New York Constitution in conjunction with state finance law, the Appellate Division, Third Department found that the case, “clearly of ongoing public interest,” fell within the exception to the mootness doctrine and ultimately deemed it “judicious to determine th[e] matter” despite the passage of that year’s budget, “[i]n light of the significant issue raised, the likelihood of repetition and the need to clarify the law for the participants” (Winner v. Cuomo, supra, 176 AD2d at 63) (internal citations and quotation marks omitted). A justiciable controversy is presented (see David v. State, 159 AD3d 987 [2d Dept 2018]). Since the instant matter before the Court is a significant or important question not previously passed on and is one with a likelihood of repetition, the Court will offer the following determination on the motion. Facts are not in dispute The facts here are simple and entirely undisputed. The declaratory judgment action raises a pure question of law, which has been argued by all of the parties on the merits. The parties have laid bare their respective proofs, thereby deliberately charting a course for summary disposition (see generally Natural Resources Defense Council, Inc. v. New York State Dept. of Environmental Conservation, 120 AD3d 1235, 1240 [2d Dept 2014]). Defendants have at no time identified or demonstrated the existence of any material factual issues. In their Supplemental Memorandum (p. 7), dated February 17, 2023 (NYSCEF Doc. No. 25), defendants call for dismissal of the action (“dismissed for the reasons detailed in Defendants’ February 15, 2023 opposing brief”). Moreover, the request for dismissal was offered as the relief sought by defendants at oral argument. Since the parties have demonstrated the absence of all factual issues, the rights of the parties can be determined as a matter of law. The Court will proceed to address the important question of law. The governor announced and transmitted to the Senate the name of her appointee on December 22, 2022. The Senate Standing Committee on the Judiciary voted against advancing the appointee before the full Senate floor by a 10-9 vote on January 18, 2023. This declaratory judgment action was commenced by filing on February 9, 2023, by virtue of an Order to Show Cause based on urgency and emergency. On February 15, 2023, defendants filed their responsive papers through counsel. Reply papers were filed on February 16, 2023 and an extensive oral argument was held on February 17, 2023 on the issue of mootness and the merits of the claim. The New York State Constitution, like many state constitutions, mirrors the consummate logic of the Founding Fathers in establishing an upper legislative chamber, the Senate, as the more deliberative body of the state legislature. In that role, that deliberative body is afforded various privileges and obligations separate and apart from the lower chamber, the Assembly. One of the various privileges is the ability to confirm or reject an appointment by a governor of judges to the state’s highest court. Here, that is the Court of Appeals. The current provision in the state Constitution setting forth the Judiciary — that is, Article VI — was adopted by vote of the People on November 7, 1961. That vote repealed and replaced the former Article adopted on November 3, 1925. The specific provision at issue is set forth under Article VI §2 (e), which states, in pertinent part: The governor shall appoint, with the advice and consent of the senate, from among those recommended by the judicial nominating commission, a person to fill the office of chief judge or associate judge, as the case may be, whenever a vacancy occurs in the court of appeals;… This particular provision was added by the vote of the People on November 8, 1977. The Amendment by the People that year included subdivisions (c) through (f), which provisions set forth what happens, under the long-standing constitutional provision at issue herein, that is, “the governor shall appoint, with the advice and consent of the Senate…” The new Amendment also discusses the process when the Senate is not in session (Article VI §2 subdivision [f] ["An interim appointment shall continue until the Senate shall pass on the Governor's selection…"]). Under the interim appointment provision, the Senate must “confirm” or “reject” a governor’s appointment. When subdivision (e) and (f) are read in harmony, as parts of the same Amendment, it is clear that the vote of the full Senate is mandated. Defendants’ insistence, at oral argument, that the internal rules of the Senate are controlling and that a rejection can occur by virtue of a separate committee vote is contrary to logic. To begin, in this case, the nineteen members of the committee do not constitute a quorum of the 63-member Senate. The Senate cannot “reject” or “pass” on the governor’s appointment with just 19 members voting. Furthermore, taken to its commonsense extreme, reliance upon the Senate’s rule-making authority could permit a rule that authorizes a single member to “confirm” or “reject” a governor’s appointment, converting the Senate chamber, the more deliberative body, into a deliberative “body” of one. Such cannot stand as a hallmark of democracy. Moreover, in the face of a constitutional conflict, the rules of the Senate, which certainly have their place, “may not substitute for or substantially alter the plain and precise terms of that primary source of governing authority” (King v. Cuomo, 81 NY2d 247, 252 [1993]). But more importantly, the phrase “with the advice and consent of the senate” has been a part of the NYS Constitution since the Fourth Constitution of New York, which was adopted by the People at a general election held on November 6, 1894 (see Article VI §8). That provision then stated: [Vacancy in Court of Appeals, how filled.] — When a vacancy shall occur otherwise than by expiration of term, in the office of Chief or Associate Judge of the Court of Appeals, the same shall be filled, for a full term, at the next general election happening not less than three months after such vacancy occurs; and until the vacancy shall be so filled, the Governor, by and with the advice and consent of the Senate, if the Senate shall be in session, or if not in session the Governor may fill such vacancy by appointment.… The Fourth Constitution, as adopted by the People on November 6, 1894, and the Third Constitution, which was adopted by the People on November 3, 1846 and which created the Court of Appeals (see Article VI §2), were both introduced by the following preamble: WE, THE PEOPLE of the state of New York, grateful to Almighty God for our freedom, in order to secure its blessings, DO ESTABLISH THIS CONSTITUTION. As self-governing citizens in a free republic, here, “We the People” in adopting a new constitution, granted enumerated powers to designated individuals and groups. A power-granting constitution also limits authority. Those receiving power only receive the power the constitution grants. If the constitution does not grant an enumerated power to a public official or group, then that individual or group does not have it. Defendants’ position is that the constitutional provision adopted by the People in 1894, that is, “with the advice and consent of the Senate,” does not mean what the constitution clearly says. The “advice and consent of the Senate” language in the Fourth Constitution demonstrates that such was to occur when the whole Senate was in session and that the establishment of the constitution was the result of the will of the People. So, historically, the phrase was always understood to be the required actions of the whole Senate and not a small, or recently altered, committee thereof. The mandatory nature of the constitutional command is buttressed by Judiciary Law §68(4)(a), which deals with appointments when the Senate is in session and reads in pertinent part: The senate shall confirm or reject such appointment no later than thirty days after receipt of the nomination from the governor. This provision simply effectuates the command from the People that the constitutional provision must be followed and that all appointees of the governor to the Court of Appeals must receive a floor vote by the full Senate chamber. Additionally, another contemporaneous statute, Public Officers Law §7, reinforces the notion that “[a]n appointment to an office by the governor by and with the advice and consent of the senate” requires the vote of the full body of the senate (“If the senate shall reject such nomination…If the senate shall confirm such nomination…”). This general statute provides further support for the relief of a declaration in favor of a full floor vote on a judicial nomination to the Court of Appeals (see generally White v. Cuomo, 38 NY3d 209 [2022]). The interpretation offered by the defendants concerning a 129-year-old constitutional provision, a 46-year-old specific statute and a 131-year-old general statute addressing the issue of “advice and consent” is so remote from the original intent of the state legislators who drafted those words and from the expressed desires of the People who approved the constitutional provision, that this Court must, without hesitation, reject defendants’ claim. This Court’s adherence to constitutional interpretation from the original drafters is consistent. As James Wilson, one of the original Supreme Court Justices, noted: “The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.”1 Additionally, Joseph Story, who wrote most of the Supreme Court opinions during his time on the bench and who is regarded as the “Father of American Jurisprudence,” instructed: “The first and fundamental rule in the interpretation of all documents is, to construe them according to the sense of the terms, and the intention of the parties.”2 One of the Founding Fathers, James Madison, warned about straying from the original intent of a statute: “What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.”3 Apropos are the words of another Founding Father, Thomas Jefferson, who advised on questions of construction: “[O]n every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was past.”4 In conforming to the probable meaning of the “with the advice and consent of the senate” provision, when it was first adopted by the People 129 years ago, since the language of the constitution is crystal clear, reference to legislative intent is unnecessary. However, one need look no further than the Report of the Joint Legislative Committee on Court Reorganization, which brought about the constitutional change and which explains: The net of the Committee’s proposal accordingly is that a constitutional amendment be adopted, authorizing the Governor to appoint the Chief Judge…with the advice and consent of the Senate. Before acting, the Senate will receive a report from its Judiciary Committee, which will have held public hearings, with the nominee asked to appear for questioning by Committee members and with interested citizens invited to be heard. The Senate will receive and debate the Committee’s recommendations, then vote.5 Current caselaw has consistently held that words of a constitution, and of a statute, must be interpreted in accordance with their plain and ordinary meaning (see Burton v. New York State Dept. of Taxation & Fin., 25 NY3d 732, 739 [2015]) and must be given a reasonable interpretation (see Association for Protection of Adirondacks v. McDonald, 253 NY 234, 238 [1930]). “When the plain language of the statue is precise and unambiguous, it is determinative” (Matter of Washington Post Co. v. New York State Ins. Dept., 61 NY2d 557, 565 [1984]). As settled by King v. Cuomo, supra, 81 NY2d at 253: When language of a constitutional provision is plain and unambiguous, full effect should be given to “the intention of the framers…as indicated by the language employed” and approved by the People (Settle v. Van Evrea, 49 NY 280, 281 [1872]; see also People v. Rathbone, 145 NY 434, 438 [1895]). Defendants’ interpretation is simply unreasonable. The literal language of the constitutional provision is controlling. The People never voted for such a procedural shortcut to the 129-year-old “advice and consent” provision embedded in the Constitution. Finally, the historical practices of the Senate are counter to its current position. The newly created extra-constitutional practice is not authorized. This Court finds the constitutional provision set forth above, standing alone, is enough to decide this matter. Simply put, under the Doctrine of Legislative Equivalency, the constitution is the superior legislative enactment. The constitution can only be changed or altered by a constitutional amendment. Just as a Local Law enacted under the Municipal Home Rule Law cannot be changed or altered by a simple resolution or ordinance (see Noghrey v. Town of Brookhaven, 214 AD2d 659 [2d Dept 1995]; Naftal Assocs. v. Town of Brookhaven, 221 AD2d 423 [2d Dept 1995]), here the constitutional provision cannot be changed or altered by an internal rule or procedure of the Senate. This Court must conclude that the practice adopted by the defendants is not allowed under the Constitution. The judiciary committee does not have the constitutional duty for “advice and consent.” The constitution clearly states that this power is reserved to the Senate. The judiciary committee can aid the full Senate by performing an investigative function, but it cannot substitute for the power reserved to the Senate by the constitution. At oral argument counsel for the plaintiff conceded that with the changed circumstances, the allegations of the third cause of action are moot. The Court agrees but notes that the constitution designates the Lieutenant Governor as the “president of the Senate” (Article IV §6). However, the letter to the governor rejecting the appointment was not signed by the Lieutenant Governor but by the defendant, Senate Majority Leader. Strict compliance with the preparation and mailing of a letter is critical (see, e.g., Citibank, N.A. v. Conti-Scheurer, 172 AD3d 17, 20 [2d Dept 2019] [failure to strictly comply with the mailing of the required notice pursuant to RPAPL §1304 renders the mailing defective]). The failure to follow the express statutory provisions regarding mailings can be problematic. The Court rejects the microscopically examined theories of a lost political battle or no evidence of vote nullification or usurpation of power and the conclusion that “such is wholly internal affairs of the Legislature,” or to be “determined by entirely internal rules of proceedings.” The defense that this is an “internal matter for the Legislature, not the courts,” would render the issue unreviewable. This is not a claim of “generalized grievances,” but one of a constitutional grievance. The instant matter is not a challenge to the rules of the Senate but an action to enforce, by declaration, a constitutional direction. Judicial review of the defendants’ interpretation of “advice and consent” is wholly appropriate. Defendants’ call for an explicit procedural command in the constitution is an attempt to create an argument where one does not exist. The above provisions impose a mandatory obligation on the Senate to do so. In any event, the plaintiff state senator has the capacity to sue and the requisite injury in fact to possess standing to sue (see Silver v. Pataki, 96 NY2d 532 [2001]; see generally David v. State, 159 AD3d 987 [2d Dept 2018]). Here, the legislative power is restrained by the constitution and the legislator’s authority is frustrated by the procedure adopted, which is contrary to the constitution. The injury in fact falls within his zone of interest and he posses a concrete interest in prosecuting the action. This is not a case where the plaintiff-legislator lost a political battle. The defendants’ actions have created their own version of vote nullification, where no nominee is submitted to the Senate for a full floor vote. The individual legislator has standing to protect his constitutionally protected vote. Unlike Montano v. County Legislature of County of Suffolk, 70 AD3d 203 [2d Dept 2009]), this case does not involve a misinterpretation of a rule or a legislative point of order, but a constitutional violation. The Court of Appeals has repeatedly held that it is the responsibility of the court to apply and enforce the will of the People as expressed in our Constitution (see Bethlehem Steel Corp. v. Board of Educ., 44 NY2d 831 [1978]; see also King v. Cuomo, supra, 81 NY2d at 251). This Court will not shy away from its judicial function. The remedy and appropriate relief “An action for declaratory judgment is one that seeks to have the court establish and promulgate the rights of the parties on a particular subject matter” (Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3001:1, at 257-258 [main vol.]). “The general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations” (James v. Alderton Dock Yards, 256 NY 298, 305 [1931]). In light of an examination of the above constitutional provisions and statutes, the Court must conclude that the failure to submit an appointment to a full vote of the Senate within thirty days of receipt of the nomination from the governor is unconstitutional. The appointment here was not “lost,” as stated by the defendants on January 18, 2023, but was still alive, awaiting final resolution by the full vote of Senate chamber. It is, therefore, ORDERED AND DECLARED, that pursuant to Article VI §2 (e) of the NYS Constitution, the plaintiff, Hon. Anthony H. Palumbo, is entitled to a full floor vote before the Senate on a gubernatorial nominee for the Court of Appeals. Accordingly, plaintiff’s motion (#001) is granted as set forth herein and defendants’ application for dismissal of the complaint is denied. This constitutes the decision and order of the Court
