Ohrenstein v. Thompson

82 A.D.2d 670, 444 N.Y.S.2d 196, 1981 N.Y. App. Div. LEXIS 11852

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 8, 1981
• Status: Published

Opinions

OPINION OF THE COURT

Casey, J.

The only issue on this appeal is whether certain entries in the Senate Journal for April 17, 1980 are so inaccurate as to violate section 10 of article III of the State Constitution. That section provides, in part, that “[e]ach house of the legislature shall keep a journal of its proceedings, and publish the same, except such parts as may require secrecy”. Petitioners contend that implicit in that provision is a mandate to keep the journal accurately and that the vote taken in regard to 130 separate items contained in three appropriation bills, which were “line vetoed” by the Governor and then resubmitted to the Senate for reconsideration, is not correctly reflected in the journal entry of April 17, 1980,

On April 16, 1980, in order to override the Governor’s vetoes, the Senate voted by separate roll call on each individual appropriation item. This process resulted in overriding 11 of the Governor’s “line vetoes” but took more than five hours to complete. Therefore, on the following day, the Majority Leader proposed that the remaining 130 items be divided into three groups, each representing the principal parts of the budget. Five items were assigned to capital construction, 35 items to State purposes, and 90 items to local assistance. In order to save time, it was proposed that a Senator’s vote on each group of bills would be deemed a vote on each item contained in that group. This proposal was adopted by a majority of the Senate with certain members, including petitioners, objecting. Although each Senator present on April 17, 1980 actually voted only six times — three voice votes on three separate motions to remove each group of bills from the table and three roll call votes on each package — the journal reflects 260 individual votes.

Having been defeated on their motion made on the Senate floor to correct the journal in this respect, petitioners commenced this article 78 proceeding, alleging violations of the New York State Constitution, the Penal Law, the Legislative Law and the Public Officers Law.

Special Term dismissed the petition in reliance on section 9 of article III of the State Constitution, which directs that “[e]ach house shall determine the rules of its own proceedings”, and upon a finding that no overriding constitutional question was presented. We agree.

Despite petitioners’ argument to the contrary, it is clear that the crux of their challenge here is not that the Senate Journal inaccurately reflects the actions of the Senate. Rather, petitioners’ complaint is actually with the Majority Leader’s proposal that a Senator’s vote on each group of bills would be deemed a vote on each item contained in that group.

The proposal of the Majority Leader, which was duly carried by a majority of the Senate, was an “internal affair” of that body (see Matter of Gottlieb v Duryea, 38 AD2d 634, 635, affd 30 NY2d 807, cert den 409 US 1008), with which the courts will not interfere (New York Public Interest Research Group v Steingut, 40 NY2d 250, 257). Moreover, the journal does reflect that the appropriation items were packaged and that a “nay” vote on a package to override the Governor’s veto was to be deemed a “nay” vote on each item of the package. Therefore, the journal is not inaccurate and the petition was properly dismissed by Special Term.

The judgment should be affirmed, without costs.