Political Class Dismissed

The bosses released their rigged map today but may have inadvertently allowed a good guy into the Assembly.

The 140th district (PDF) contains southern Erie where he beat Volker and Wyoming where he beat Pat Gallivan.

Stay tuned.

Media Advisory:

Contact:

James Ostrowski
Atty. at Law
(716) 435-8918
jameso@apollo3.com

http://politicalclassdismissed.com/?page_id=1110

NY STATE REFUSES TO ANSWER MOTION FOR REARGUMENT IN THE PORK LAWSUIT

Buffalo, NY, January 25, 2011. The State of New York has filed what amounts to a non-response, response to the detailed motion for reargument filed by the plaintiffs last month.

The motion was placed on the Court’s calendar on January 23, 2012 with a ruling expected shortly.

The motion is online here:

http://politicalclassdismissed.com/?p=12775

The Defendants’ responses are online here:

http://politicalclassdismissed.com/?p=12836

The defendants fail to respond to any of the arguments made by the plaintiffs, and falsely state that the motion is a re-hash of our brief. A quick glance at the brief refutes that claim.

Among other points, the plaintiffs alleged that the State may have misled the Court on oral argument (See Point III). We asked for the basis for the statement concerning the critical words “in aid of”. Since no basis was provided, it now appears that counsel’s statement to the Court had no basis! Yikes!

Jim Ostrowski said, “Counsel for GlobalFoundries, while refusing to respond to our motion, demanded ‘finality’ of this dispute. Sorry, cash grants to corporations are essentially armed robbery of the taxpayer by multinational corporations. They are illegal, immoral, corrupt the political process and hurt the economy. There will be no ‘finality’ until this evil and odious crime is ended in New York State.”

STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
ERIC T. SCHNEIDERMAN
ATTORNEY GENERAL
BARBARA D. UNDERWOOD
SOLICITOR GENERAL
Telephone (518) 474-1394
January 20,2012

The Honorable Andrew W. Klein
Clerk of the Court
Court of Appeals
20 Eagle Street
Albany, NY 12207

Re: Bordeleau, et al. v. State of New York, etc.
OAG No. 08-081348

Dear Mr. Klein:

This letter is submitted on behalf of the State of New York and the other State respondents in opposition to plaintiffs’ motion for reargument returnable January 13,2012.

The motion should be denied because plaintiffs have not stated an adequate ground for reargument. Section 500.24(c) of the Court’s Rules of Practice provides that a motion for reargument of an appeal “shall state briefly the ground upon which reargument is sought and the points claimed to have been overlooked or misapprehended by the Court, with proper reference to the particular portions of the record and to the authorities relied upon.” Plaintiffs have failed to satisfy the requirements of this rule because they have not shown that the Court “overlooked or misapprehended” any of points raised in the papers submitted in support of the motion.

The arguments raised by plaintiffs in support of their motion were raised in their brief on the appeal and were thoroughly considered and rejected by the Court. This Court has long held that a defeated litigant seeking reargument must do more than simply repeat arguments that the Court has already considered and rejected. See Fosdick v. Town of Hempstead, 126 N. Y. 651, 653 (1891) (denying a motion for reargument on the ground that “counsel now asks for a reargument simply because he desires to present further views upon the same question which has been already, after full argument, carefully considered and decided by us”); see also Henry Cohen and Arthur Karger, The Powers of the New York Court of Appeals 694-95 (1992) (“[T]he consistent attitude of the Court seems to be that it will not reopen a decision on a point which it has given full consideration; that the function of reargument, if any, is rather to consider points truly ‘overlooked’ or ‘misapprehended,’ in the sense, not merely that the decision was wrong, but that the bearing or nature of the issue itself might have been misunderstood by the Court.”).

Furthermore, the fact that the Court’s opinion did not directly refer to a point made in plaintiffs’ brief does not imply that the Court overlooked it. See The Colonial City Traction Co. v. The Kingston City Railroad Co., 154 N.Y. 493 (1897).

Thus, plaintiffs have not shown that any point was overlooked or misapprehended by the Court. There is no basis for reargument and plaintiffs’ motion should be denied.

Respectfully submitted,

ERIC T. SCHNEIDERMAN
Attorney General of the State
of New York
BARBARA D. UNDERWOOD
Solicitor General
ANDREW D. BING
Deputy Solicitor General
PAUL GROENWEGEN
Assistant Solicitor General

cc: James Ostrowski, Esq.

CRAVATH, SWAINE & MOORE LLP

The Honorable Andrew W. Klein
Clerk of the Court
Court of Appeals
20 Eagle Street
Albany, NY 12207

Dear Mr. Klein:

Bordeleau, et al. v. State of New York, et al.
Albany County Clerk’s Index No. 6582/08
January 20, 2012

On behalf of defendant-appellant IBM, counsel for IBM respectfully submits this letter in opposition to plaintiffs-respondents’ December 21, 2011 motion for reargument in the above-titled matter. Defendant-appellant IBM joins and incorporates the points set forth in the January 20, 2012 letter submitted by the State in opposition to plaintiffs-respondents’ motion for reargument.

The arguments set forth in plaintiffs-respondents’ motion simply rehash issues previously considered by this Court. Based on the reasons set forth in the State’s letter, plaintiffs-respondents’ motion for reargument must be denied because plaintiffs­respondents have failed to allege adequate grounds for reargument, as set forth in Rule S00.24(c) of this Court.

V. Sankoorikal

Harold N. Iselin
(518) 689-1400
iselinh@gtlaw.com

January 23,2012

JAN 23 2012
NEW YORK STATE
COURT OF APPEAlS

VIA HAND DELIVERY

The Honorable Andrew W. Klein
Clerk of the Court
Court of Appeals
20 Eagle Street
Albany, NY 12207

Re:

Bordeleau, et al. v. State of New York, et al., Albany County Index No.
6582-08, Appellate Division, Third Department Docket No. 508604

Dear Mr. Klein:

We represent Defendant-Appellant GLOBALFOUNDRIES U.S., Inc.

(“GLOBALFOUNDRIES”) in the above-referenced appeal. GLOBALFOUNDRIES hereby joins in the January 20, 2012 letter submitted on behalf of the State Defendants in opposition to plaintiffs’ motion for reargument.

Plaintiffs do not identify any “points claimed to have been overlooked or misapprehended by the Court,” as required by Section 500.24(c) of the Court’s Rules of Practice. Rather, Plaintiffs merely reiterate and rehash their prior arguments and accuse the Majority of “judicial liberalism.” That the Majority of the Court disagreed with plaintiffs’ position is no grounds for reargument. Plaintiffs have had a full and fair
opportunity to present their arguments, and the need for finality demands an end to this
litigation.

GLOBALFOUNDRIES respectfully requests that the Court deny plaintiffs’ request.

Respectfully submitted,

Harold Iselin

GREENBERG TRAURIG. LLP • ATTORNEYS AT LAW. WWWGTLAWCOM

54 State Street. 6th Floor. Albany. NY 12207 • Tel 518.689.1400 • Fax 518.689.1499

Lippes Mathias Wexler Friedman LLP
Thomas J Gaffney, Esq
Associate
tgaffney@lippes.com

January 20, 2012

The Honorable Andrew W. Klein
Clerk of the Court
Court of Appeals
20 Eagle Street
Albany, NY 12207

Re: Bordeleau, et al. v. State of New York, et al.

OAG No. 08-081348

Dear Mr. Klein:

This letter is submitted on behalf of Respondent West Genesee Hotel Associates
in opposition to plaintiffs’ motion for reargument returnable January 23, 2012 in the
above matter.

We reiterate herein and join in the position taken by the Office of the Attorney
General in its opposition papers dated January 20, 2012. We agree that the plaintiffs’
motion should be denied in its entirety.

Respectfully submitted,

LIPPES MATHIAS WEXLER FRIEDMAN LLP

By:

Thomas J. Gaffney

I’ve pretty much given up on WNY saving itself (through electoral politics) and my main focus is boosting Ron Paul at Twitter.

The Dems nominated a guy for Assembly who, judging by Google, has the following record and qualifications. He has been paid an absurd amount of money for a do-nothing “job” working for the odious Brian Higgins. That’s it. NOTHING else is known about this guy. Scary shit.

Go Mickey!

WBEN Dave Debo Show, 10:45am.

Listen online.

“One of the criticisms I make is to what I refer to as more of a Libertarianish right. They have this idea that people should be left alone, be able to to do whatever they want to do. Government should keep our taxes down and keep our regulations low, that we shouldn’t get involved in the bedroom, we shouldn’t get involved in cultural issues. That is not how traditional conservatives view the world. There is no society that I am aware of, where we’ve had radical individualism and that it succeeds as a culture.” – Rick Santorum

Op-ed of John Garver, Rick Santorum’s 19 year old nephew:

If you want another big-government politician who supports the status quo to run our country, you should vote for my uncle, Rick Santorum. America is based on a strong belief in individual liberty. My uncle’s interventionist policies, both domestic and foreign, stem from his irrational fear of freedom not working.
READ ON AT THE DAILY CALLER

Rick Santorum’s response to his nephews op-ed:

BRENTWOOD, NH – At his first event in the Granite State since the Iowa caucuses, Rick Santorum said his Ron Paul-loving nephew is just going through “a phase.”
READ ON AT THE DAILY CALLER

Ron Paul has 21% in one poll as a third party candidate without even trying. It’s reasonable to assume that even in a disappointing effort, Ron would win a few states. Let’s say he wins Texas, Nevada, Montana and New Hampshire. He would collect 51 electoral votes, making it very difficult for anyone to win a majority.

In that event, the election would go to the House (voting by state) which Republicans control. Who has more bargaining power, Ron Paul with 51 electoral votes choosing the President or Ron Paul with a few hundred delegates at a pre-determined GOP convention.

Think strategically folks. Our enemies do.

Ron Paul as Third Party Candidate

More brain unwashing on Ron Paul running third party

More to come from a Liberty Movement political consultant who has followed every presidential race since 1968.

Look, how does a small number of people–the power elite–control a large number of people–us?

By brainwashing us through their public relations firm we call the Mainstream Media.

Brainwashing involves the endless repetition of baseless assertions for which no evidence exists or which are simply false–until people begin to believe the big lie.

Example: Ron Paul shouldn’t run third party since that will guarantee Obama’s re-election.

There are several big lies embedded in that piece of Power Elite/MSM propaganda.

1. That it matters whether Romney or Obama wins because Republicans favor smaller government.

The truth: there is ZERO evidence that government grows more slowly under Republican presidents.

2. Ron Paul hurts the GOP more than he hurts Obama.

The truth: we don’t really know. What we do know is that Ron Paul’s base is very similar to Obama’s. He polls best with young people, moderates, independents, antiwar voters, blacks and people in the Northeast. He got only 1/7th of the Republican vote in Iowa but 44% of the independent vote there. People still debate whether Perot cost Bush the election in 1992. Some polls showed his people would have split pretty evenly and Clinton would have won anyway. The fact that the liberal media has hit Ron Paul hard suggests that they think he is a threat to Obama.

3. Ron Paul can’t win a third party line.

The truth: We don’t know yet. Past history is irrelevant because each historical moment is unique. Ron Paul is a much more credible candidate than Perot was. The nation is in much more dire straights. I believe there is a winning strategy for a Ron Paul third party win but I’m not ready to roll it out here and now.

The bottom line is that no one can prove with hard data that Ron Paul can’t win on a third party line.

More to come. Stay tuned.

I’m with Ron Paul, who I first met in 1988, to the end. However, it makes no difference to me per se whether he runs as a Rep. or as an independent. This is not a matter of principle but of practicality, like what’s the best route to the football game.

Here’s a common response: if Ron ran as a third party candidate, that would guarentee the election of Obama. Let’s leave aside my belief that unless Ron Paul beats him, Obama will be re-elected and let’s leave aside the fallacy that there’s a dime’s worth of difference between the parties. Let’s just follow that logic.

It must mean that if Ron Paul runs, Romney cannot win. THAT I agree with! Since I don’t think Romney can win anyway, I certainly think he loses a three-way. So, what are the anti-Obama forces to do if Ron runs? Spockian logic dicates that, since Romney would be dead and they want Obama gone, they would reluctantly support Ron Paul. If enough people abandoned Romney for Ron and Ron became the primary contender against Obama, then the GOP could be relegated to third party status and Ron Paul could win!

And this is simple logic based on the premise put forth by those who oppose Ron running.

Looks like I got something out of that philosophy degree after all.

From Charles Hugh Smith:

“The Ministry of Propaganda has chosen to suppress the only dangerous-to-the-Power Elites candidate by declaring him “unelectable.”

The Status Quo’s Ministry of Propaganda has a single political task for 2012: eliminate the sole threat to the Status Quo (Ron Paul) from the running, leaving voters with a “choice” of clueless stooges for the Power Elite.

That roster includes President Obama and the daytime-TV/soap-opera field of Republicrat contenders.

The Ministry of Propaganda has settled on a ludicrous strategy to eliminate Ron Paul: declare Paul “unelectable.”

As with all propaganda, the basic idea is that if it is repeated often enough on officially sanctioned stages, it will eventually be accepted as “true.”

Despite the polls that find Paul and Romney with equal levels of support in Iowa, Romney has been declared the front-runner and Paul written off as “unelectable.”

In other words, the voters don’t even need to check in; the Ministry of Propaganda’s army of toadies, lackeys and media apparatchiks have their marching orders: repeat that Ron Paul is unelectable at every opportunity, either explicitly or implicitly via leaving him off the list of “frontrunners.”

What all the candidates but Ron Paul dare not acknowledge because it isn’t on the approved Ministry of Propaganda script is that the Status Quo is heading off a cliff at the direct behest of the nation’s Power Elite. The only candidate that has “the vision thing” and that clearly enunciates exactly how the Power Elite’s policies have led the nation off a cliff of insolvency and Imperial hubris is Ron Paul.”

Read the rest here: Ron Paul Unelectable

Here’s a hilarious song/video created by a local talent out of Lockport.

Excerpted from the Year in Review by Dave Barry.

APRIL

… a major crisis is barely avoided when Congress reaches a last-minute agreement on the federal budget, thereby averting a government shutdown that would have had a devastating effect on the ability of Congress to continue spending insanely more money than it has.

Maria Whyte has received her partisan reward for being a good comrade. She will be our next Commissioner of Environment and Planning.  Here are the job requirements from the Erie County Charter:

Department of environment and planning; commissioner; qualifications. There shall be a department of environment and planning headed by a commissioner. He or she shall be appointed by the county executive, subject to confirmation by the county legislature. He or she shall possess not less than a baccalaureate degree in an appropriate subject field and suitable experience in private or public administration and environmental control or regional, county or municipal planning.Section 1002. Powers and duties of commissioner. The commissioner of environment and planning shall have the following powers and duties:

1. He or she shall administer the planning, environmental compliance, drainage, flood control, solid waste management, sewerage planning, construction and management functions vested in the executive branch of the county government, provided, however, that this provision shall not be deemed to restrict the powers or duties of any administrative body appointed, designated, or established in accordance with article five a of the county law and the Erie county charter and administrative code.
   Amended by Local Law No. 6 1988.
2. He or she shall head the department of environment and planning, supervise and direct its officers and employees, and make such assignments of powers and duties among them as he or she may consider advisable.

Here is Maria’s biography from her legislative page:

Read more »

[Note: this motion is to be submitted for decision on January 23, 2012.]

Court of Appeals of the State of New York

LEE BORDELEAU, et al.,
Plaintiffs-Respondents,

-against-

The STATE OF NEW YORK, et al.,
Defendants—Appellants.

Brief of Appellants for Reargument

December 21, 2011

QUESTION PRESENTED

1. Should the Court grant reargument because it overlooked or misapprehended the legal points outlined herein.

Proposed answer: Yes.

INTRODUCTION

This motion for reargument is the last plausible means by which to salvage 137 years of herculean effort by the People of the State through their Constitution to ban “legal robbery” of their money by greedy business firms working in alliance with corrupt politicians. [Quote from Mayor Opdyke cited in Plaintiff’s brief at 19] If this motion fails, the mind boggles while pondering what options remain to end this evil practice.

The reason for the constitutional amendment initially was that the Legislature was giving away the people’s money to special interest groups. However corrupt and unresponsive the Legislature was in 1874, the reality in 2011 is that it would be impossible for average citizens to persuade today’s Legislature to abolish corporate welfare. Corporate welfare is in many ways how they finance their campaigns and maintain power.

The notion of voting them out is naïve. Their re-election rate is absurdly high. Every intelligent observer knows that the political system in New York is rigged to protect and re-elect incumbents. In fact, there is evidence in the complaint in this case that legislators received legalized “kick-backs” from corporate grantees in the form of campaign donations. [Record at 36-37] How can citizens defeat legislators who violate the Constitution and thereby get a kick-back to buy the critical TV ads that guarantee their re-election?

The notion that citizens should respond to this Court’s decision by amending the Constitution, is preposterous. The People already amended the Constitution to ban corporate grants. Any further attempt to ban corporate grants using plain language could be overridden by court decision as the present effort was on November 21st. And, obviously, having lost in the State’s highest court on a pure issue of state law, the courts would be foreclosed to us if this motion is denied.

I. THE COURT MISAPPREHENDED THE LEGISLATIVE HISTORY OF THE BAN ON GIFTS.

The defendants said very little about the legislative history of the gift clause until the State discussed it in a very tendentious manner in their brief filed with the Court of Appeals. Unfortunately, the Court was apparently influenced by this stilted review in their recent opinion. The Court discusses the ban on gifts of credit passed in 1846, briefly mentions the ban on cash gifts passed in 1874 and dwells on the 1938 retention of the ban on cash gifts.

Contrary to the Court’s opinion, there is zero evidence of a major change in the law in 1938 and there is zero evidence that the ban on gifts to private firms was narrowed in 1938. On the contrary, it appears that the Constitution was merely clarified in accordance with the previous understanding that State credit could not be given to any public agency but that State money could go to public entities. This is hardly the gift clause upheaval the defendants portray as providing the basis for wiping out the 137 year old gift clause.

Furthermore, the words “or in aid of,” which plaintiffs deem critical to the case, were carried over from the original gift clause of 1846! A plain reading of those words, in the spirit of reconciling the various elements of the newly constructed clause (See McKinney’s Statutes, §98), directly contradicts the assertion of the defendants that the exclusion of “public corporations” from the ban on gifts of money was meant to erase 137 years of constitutional efforts against economic development subsidies.

The legislative history from the time is startling in that it directly contradicts the defendants’ position. It is also startling that the defendants, who have at their disposal virtually unlimited legal resources, never brought the Court’s attention to this vital legislative history.

“It has long been settled by custom that insofar as the giving of money is concerned the term “corporation” means private corporation. The State frequently gives its money to authorities and, of course, all State aid appropriations are given in aid of municipal corporations. To clarify and settle the meaning of the word “corporation” as used with respect to gifts or loans of money, the committee urges that the term be qualified by the word “private.” . . . On the other hand, custom has long established that the word “corporation” as used in connection with the gift or loan of credit has meant all corporations, of a governmental as well as private character. This was the position taken by the Governor in his annual message to the Legislature on January 6, 1937. To remove any doubt which may exist and to make the existing language conform to such meaning, the committee has in Section 1 or Article VII inserted before the words “association or corporation” the words “public or private,” which adjectives qualify both nouns. But, even were this not the correct interpretation of the existing language, the committee believes that this is the limitation which should prevail. If corporations were here defined as only private corporations, by immediate implication the State credit could be given or loaned to every municipal or other public corporation. If cities found themselves in difficulties, or if an authority were unable to sell its securities, they could rush to the State for assistance. One or two such instances might do no harm, but a general use of the State credit in this manner would dissipate the State’s credit and demolish the strongest foundation of our State’s financial structure. The committee feels strongly that the State’s credit should be reserved for the use of the State only, with only such exceptions as may be specifically set forth in the Constitution.” Journal and Documents of the New York State Constitutional Convention [1938], Appendix 3, Doc No. 3, at pp. 5-6).

This explanation directly contradicts the defendants’ position that there was a major constitutional upheaval in 1938. On the contrary, the law was clarified to go along with the prevailing understanding and practice. Noticeably absent in the legislative history is any desire to open the floodgates to massive subsidies to private firms for economic development. Because the Court had before it an incomplete picture of the 1938 legislative history, the motion for reargument should be granted.

This review of the 1938 legislative history explains why the 1967 convention felt the need to amend the Constitution to allow grants for corporate welfare and to allow grants to public corporations which would in turn make grants to private firms. This attempt was rejected by the voters. If the ruling of this Court on November 21st is allowed to stand, this Court will have done something beyond its constitutional authority—overturn the will of the People expressed at the polls in 1967. In American constitutional theory, the people, not the courts, are sovereign.

The Court did not fully explain why the 1874 ban was passed. In its brief discussion, the Court fails to mention the main reason for the ban: the belief of the drafters, quoted at length in plaintiff’s brief, that taxing people to give their money to business firms is “legal robbery.” The Court fails to cite any evidence that the Convention of 1938 or, more importantly, the voters, chose to re-legalize legalized robbery by allowing the state to launder money through public corporations.

II. THE STATE’S BRIEF FAILED TO PROVIDE AN ACCURATE VIEW OF THE PURPOSE OF THE 1874 BAN ON GRANTS.

Throughout the litigation, the defendants said little about the legislative history of the gift clause. Finally, in their brief to the Court, the State broke its silence. They stated that the “particular” concern was aid to “private and charitable and religious institutions.” [p. 17] While there was a debate over sectarian giving, to suggest that it was the main concern that led to the ban on cash grants is misleading and did not provide the Court with a complete picture of the legislative history.

Throughout their argument, the defendants attempt to separate the gift clauses of 1846 and 1874. However, they are genetically linked. First, the language “in aid of” dates from 1846. Second, one of the chief motives for the ban on grants in 1874 was that the State was evading the ban on gifts of credit by giving cash leading to the very same fiscal problems. Report of the Committee on Health, Housing and Social Services, Document No. 35, p. 2, Constitutional Convention of 1967. Thus, the clause of 1874 simply continued the movement started in 1846 against subsidies to private firms for economic development.

Because the State defendants did not give the Court a complete picture of the legislative history of the ban on grants, reargument should be granted. Only by failing to take account of the actual purpose of the ban on grants can the Court hold implicitly that economic development is a proper public purpose authorizing the State and the State’s authorities to provide grants to private firms.

III. THE STATE MAY HAVE MISSTATED THE PURPOSE OF THE WORDS “IN AID OF” AT ORAL ARGUMENT.

At oral argument, plaintiffs’ counsel argued that the words “in aid of” forbade the use of money laundering through a public authority to evade the ban on subsidies. [22:00] On rebuttal, counsel for the State dismissed that argument, stating, “…the history that led to that phrase is that sometimes what the State was doing was actual work, surveying, spending money in aid of the railroads…” [35:00] We have searched for any legislative history on the purpose of that phrase and found none. Nor did any defendants cite any legislative history concerning that critical term. How then did counsel for the State suddenly develop her insight as to the origin of that phrase? We trust a relevant citation will be forthcoming in the State’s response. If not, reargument should be granted since that phrase is of critical importance to the case.

Legislative history aside, counsel’s assertion makes no sense since the language “in aid of” was contained in the original gift clause of 1846 that barred only the provision of credit and not “work” or “spending money.” Gifts of money were not barred until 1874, 28 years later.

The plain language of the words “or in aid of” must be given meaning in applying the entire clause. McKinney’s Statutes, §94. These are short, plain words and their overall meaning is plain and clear. In addition to barring gifts to private corporations, the gift clause through these words also bars assistance rendered in any other way including indirectly through public authorities.

IV. THE COURT ALLOWED POLICY CONSIDERATIONS TO INTERFERE WITH CONSTITUTIONAL INTERPRETATION.

In its opinion, the Court implies that the plaintiffs have a mere policy disagreement which should be taken up with the Legislature and Governor. [p. 13] On the contrary, it is the defendants and the Court at oral argument that interjected matters of policy into the case. In its Brief, the State defendants threatened that economic disaster would ensue if the Court enforced the gift clause. [p 2] However, it is not the job of the Court to weigh the consequences of enforcing the Constitution. As noted in the plaintiff’s brief and at oral argument, all such policy matters were discussed and resolved at the various constitutional conventions and by the voters who ratified the various proposed constitutions and amendments, or, as in 1967, rejected a proposal to legalize corporate grants and grants to public corporations for economic development.

In our submissions and at oral argument, plaintiffs did discuss the policies underlying the gift clause. This was (1) to aid the Court in interpreting and applying the gift clause to the present facts and (2) to emphasize that the framers had already anticipated and rejected the various spurious policy arguments made by the defendants. We have never based our case on policy arguments and the fact that the Court appears to think we did is yet another reason to reargue the case.

Now, let us examine the chain of reasoning that the Court used to arrive at the conclusions that startled two of its colleagues. We will see that the majority used pure judge-made law to override the clear words and intent of the Constitution. Early on in the opinion, the Court lays out its judicial philosophy of “deference involving ‘public funding programs essential to addressing the problems of modern life….’” [page 4, citing Schulz I, 84 NY2d at 241]. First of all, this is judge-made law as this principle of deference is not in the text of the Constitution. Second, the Court’s argument begs the question by assuming as true that which is in dispute: that free-wheeling government spending is in fact good for modern life.

Third, we could have an interesting debate at a law school seminar about the wisdom of this judge-made law in a state and nation whose governments have chronic and severe fiscal problems due to overspending. But that would merely be matching our own policy predilections against the Court majority’s. The point here is that this policy debate, in the context of corporate grants for economic development, already occurred at the various constitutional conventions and general elections which enacted strong and specific bans on such “public funding programs.”

Moreover, this debate was revisited in the 1960’s, the high water mark for judicial liberalism. In that debate, proponents of lavish public funding programs for economic development urged a change in the law using language eerily similar to that used by this Court as the ultimate premise for its dismissal of the plaintiffs’ lawsuit:

“The broad purpose and intent of Proposition 1372-B is to provide the state Legislature with the tools required to meet the essential needs of the last third of the 20th Century. In a period of expanding governmental activities, it is axiomatic that the Legislature be able to meet and overcome the challenges of our time. Today’s problems cannot await tomorrow’s solution, and the present limitations on state and local government were devised in an age when less was demanded at every level.” Report of the Committee on Health, Housing and Social Services, Document No. 35, p. 5, Constitutional Convention of 1967.

While this is an eloquent (and naïve and dated) expression of judicial liberalism, the voters in 1967 rejected the proposed Constitution that embodies that philosophy in its proposed clause legalizing corporate welfare. Thus, for the Court majority to base its holding on a philosophy they hold but which was rejected by the voters demonstrates that it is the Court, and not the plaintiffs or the dissenters, which has based its position on matters of personal philosophy and policy preferences. That being the case, reargument should be granted.

V. THE MONEY OF THE STATE MAY NOT BE GIVEN TO A PUBLIC CORPORATION FOR A PRIVATE PURPOSE—ECONOMIC DEVELOPMENT.

There is serious gap in the logic of the Court’s decision that provides another ground for reargument. The Court concludes that the State may provide funds to public corporations “for a public purpose.” [page 9] The Court doesn’t even make an effort to argue that economic development is a public purpose since giving cash for economic development has been illegal since 1874. The Court in fact provides two citations in support of its view, neither of which shows that economic development grants fulfill a public purpose. Schulz I at page 244 speaks of “public works projects” but not grants to private firms. Neither do the two pages of legislative history cited by the Court at page 11 endorse economic development grants to private firms. Thus, the Court has provided no basis for holding that economic development of the kind complained of here is a public purpose in New York State. In fact, it is not, having been explicitly rejected as such from 1846 through 1967.

VI. THE 1961 AMENDMENT TO THE GIFT CLAUSE DEMONSTRATES THAT THE CONSTITUTION HAD NOT PREVIOUSLY ALLOWED A PUBLIC COORPORATION TO MAKE GIFTS TO PRIVATE FIRMS FOR ECONOMIC DEVELOPMENT.

The Court overlooked a critical argument by the plaintiffs. If the 1938 amendment allowed the state to give money to a public authority for transfer to a private firm for economic development, it would not have been necessary for the Constitution to be amended in 1961 to allow exactly that to occur. See, Article 7, Section 8, paragraph (3). In 1938 itself, yet another exception to the gift clause that reinforces the general rule, was enacted to allow subsidies for low income housing. Article XVIII.

Here, it is essential to apply well-known and long-standing principles of interpretation:

• All parts to be construed together. McKinney’s Statutes, §97.
• All parts to be harmonized and given effect. McKinney’s Statutes, §98
• Statutes will not be construed as to render them ineffective. McKinney’s Statutes,
§144
• Every word to be given effect. McKinney’s Statutes, §231
• Expression of one thing as excluding others. McKinney’s Statutes, §240.

Taking these principles together, they clearly point to the conclusion that explicit exceptions to the general rule exclude other exceptions not stated. If not, the exceptions themselves are rendered pointless and not “given effect.”

Application of these principles negates both parts of the Court’s opinion. Obviously, the limited exception carved out for loans to a public corporation to in turn make loans to private firms excludes all other instances of state aid to public corporations for transfer to private firms. Moreover, the authorization of loans for economic development serves to exclude other forms of state aid for economic development. Yet, the Court has apparently sanctioned any and all forms of grants and loans for economic development outside the confines of subdivision three. However, the expression of one thing excludes others.

The fact the Court failed to apply well known principles of interpretation is yet another ground for reargument.

VII. THE COURT SIMPLY IGNORED THE ARGUMENT THAT THE STATE MAY NOT DO INDIRECTLY WHAT IT CANNOT DO DIRECTLY.

It is a well-established principle that the Constitution may not be evaded by indirect means. People ex rel. Burby v Howland, 155 NY 270, 280 [1898]; see also Wein v State, 39 NY2d 136, 145 [1976]). Let’s leave aside the fact that the gift clause by its own words forbids that it be evaded by indirect means (“or in aid of….). See Points I and II, above. The Court, however, never explained why this principle does not apply to this case. This sub silentio repeal of the principle is fraught with peril for there is hardly any clause in the Constitution that could not be evaded by clever legislation or creation of an authority. Burby v Howland, supra at 280-280, eloquently explains the reason for this principle:

“When the main purpose of a statute, or of part of a statute, is to evade the Constitution by effecting indirectly that which cannot be done directly, the act is to that extent void, because it violates the spirit of the fundamental law. Otherwise the Constitution would furnish frail protection to the citizen, for it would be at the mercy of ingenious efforts to circumvent its object and to defeat its commands.” (Emphasis added.)

This passage, written in 1898, is a prophetic warning about the ingenious attempt, so far successful, that began in 1968, to eviscerate 137 years of effort to ban corporate subsidies in New York State. The fact that the Court’s decision threatens to erase this important principle from the State’s jurisprudence is yet another reason to grant reargument.

VIII. BY RELYING ON MURPHY AND OVERRULING WESTCHESTER, THE COURT HAS IGNORED THE ACTUAL LANGUAGE OF THE CONSTITUTION AND SUBSTITUTED ITS OWN POLICY PREFERENCE FOR CORPORATE WELFARE.

The ban on cash grants to private firms was passed in 1874 but its history goes to back even further to 1846. It has been amended eight times but never repealed. It survived an effort at repeal in 1967. This clause was “judicially repealed” by this Court in a discussion that lasted exactly two and a half pages [pp. 11-13] and which relies essentially on one case that did not involve the State giving cash grants to economic development but a local government leasing “property,” a ban not even contained in the state gift clause at Article 7, Section 8. To the extent that Murphy is being used to judicially amend the Constitution, it should be overruled. (Since Murphy is not a gift case at all, but a lease case, the plaintiffs had no reason to ask the Court to overrule it in our initial brief on appeal.)

The Constitution bans gifts to private firms regardless of their purpose. In reading a public purpose exception into the gift clause, the Court is overthrowing the constitutional ban on its own nonexistent authority and also explicitly overruling three of its own cases that state that gifts are banned regardless of their purpose. People v. Westchester County Bank, 231 NY 465 (1921), Schulz v. McCall, 86 NY2d 225 (1995) and People v. Ohrenstein, 77 NY2d 38 (1990). To add insult to injury, the Court validates economic development grants by citing as a valid public purpose one that the gift clause was designed to categorically forbid. The gift clause now means, pending reargument, the opposite of what it says and the opposite of its intended meaning.

IX. THE COURT IGNORED OR VIOLATED SEVERAL WELL-ESTABLISHED PRINCIPLES OF INTERPRETATION.

As noted or implied throughout this brief, the Court on numerous occasions overlooked or failed to apply well-known and long-established principles of interpretation. This is another ground for reargument.

• Avoidance of judicial legislation. McKinney’s Statutes, §73. See Point IV, above.
• Statutes too clear for construction. McKinney’s Statutes, §76. See Point V, above.
• Intent determined from language used; natural and obvious meaning. McKinney’s Statutes, §94. See Points I and VIII, above.
• Consideration of the mischief to be remedied. McKinney’s Statutes, §95. See Points I and IV, above.
• All parts to be construed together. McKinney’s Statutes, §97. See Points I and VI, above.
• All parts to be harmonized and given effect. McKinney’s Statutes, §98. See Points I and VI, above.
• Statutes will not be construed as to render them ineffective. McKinney’s Statutes, §144. See Point VI, above.
• Every word to be given effect. McKinney’s Statutes, §231. See Point VI, above.
• Expression of one thing as excluding others. McKinney’s Statutes, §240. See Point VI, above.

CONCLUSION

The Court has overruled Judge Andrews’ brilliant opinion in People v. Westchester County Bank, supra, the text of the constitution, numerous constitutional conventions that retained the essence of the gift clause, and the election of 1967. The Court has indeed done something it had no legal, moral, or political right to do, or practical reason to do: “judicially amend the” Constitution. Bordeleau v. State of New York, Court of Appeals, November 21, 2011 (Judge Smith dissenting).

If plain words can be twisted or even ignored in service of misguided policy notions to mean the precise opposite of their original meaning, there is no point to having written constitutions at all except to create the illusion that the people control the government and not the other way around.

We urge the Court in the strongest possible terms to reconsider its ruling. We sincerely believe the fate of constitutionalism in this State rests on the Court’s decision on this motion.

The People of the State of New York have never needed the Court of Appeals more desperately to stand up to the executive and legislative branches of government and tell them: forty-three years of illegally “robbing” billions of dollars from the taxpayers must end now!

Dated: Buffalo, New York
December 21, 2011

_____________________________
JAMES OSTROWSKI
Attorney for Appellants
63 Newport Ave.
Buffalo, New York 14216
(716) 435-8918
jameso@apollo3.com