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Appellate Court Dismisses Challenge to Same-Sex Marriage Recognition Order
As with all the recent government orders, laws and judicial decisions concerning same-sex marriage, an order issued by the Westchester County Executive in 2006 requiring recognition of some same-sex marriages did not go unopposed. On Dec. 30, 2008, however, the Appellate Division, Second Department, upheld the legality of the order, affirming a lower court dismissal of a suit claiming the order violated New York's state constitutional and statutory law.
Arizona Group Presses for Order's Rejection
The dispute that led to the decision in Godfrey v. Spano, — N.Y.S.2d —-, 2008 WL 5413641 (2d Dept. 12/30/08) (Spolzino, J.P., Lifson, Dickerson and Chambers, J.J.), arose in 2006 after Westchester County Executive Andrew J. Spano issued Executive Order No. 3 of 2006, which directed all departments, boards, agencies, and commissions of Westchester County under the County Executive's jurisdiction “to recognize same sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite sex marriages for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law.”
As it does with so many national laws and judicial decisions involving same-sex marriage, the conservative, Arizona-based Alliance Defense Fund stepped in. It brought suit on behalf of three named plaintiffs who are Westchester County taxpayers. And, as is also nearly always the case when gay and lesbian New Yorkers' rights are challenged, Lambda Legal intervened in the suit, this time representing a New York same-sex couple legally married under Canadian law.
The lawsuit claimed that the executive order represented an invalid exercise of the County Executive's authority. The first cause of action alleged that the order amounted to illegal legislation in the area of domestic relations and marriage, and that the executive's actions should be prevented in accordance with General Municipal Law ' 51 (“All officers, agents, commissioners and other persons acting, or who have acted, for and on behalf of any county, town, village or municipal corporation in this state, and each and every one of them, may be prosecuted, and an action may be maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons ' “). The second cause of action claimed the executive order violated the New York Constitution and Municipal Home Rule Law ' 10(1) by adopting a local rule that was inconsistent with the provisions of the State's constitution or its general laws.
Supreme Court, Westchester County (Lefkowitz, J), inter alia, granted the County Executive's cross motion to dismiss for failure to state a cause of action and declared that the Executive Order was a valid exercise of the County Executive's power, was not an illegal act and did not violate the State Constitution or the Municipal Home Rule Law. The plaintiffs appealed.
Second Department Affirms
The Second Department dispensed with the first cause of action by noting that the plaintiffs were seeking only a declaratory judgment, and they were therefore entitled to relief only if the challenged act was illegal and was “such as to imperil the public interests or calculated to work public injury or produce some public mischief.'” Matter of Korn v. Gulotta, 72 NY2d 363. The executive order in question, however, told county service providers to recognize same-sex marriages only to “the maximum extent allowed by law.” “By its terms, therefore,” stated the court, “the Executive Order can never require recognition of such a marriage where it would be outside the law to do so. Since it is within the authority of the County Executive '[t]o see that the laws of the state, pertaining to the affairs and government of the county ' are executed and enforced within the county' (Laws of Westchester County ' 110.11[6] ), the Executive Order is not illegal.” Thus, the complaint did not state a cause of action under General Municipal Law ' 51.
The appellate court also agreed with the lower court that the plaintiffs lacked standing to sue in accordance with New York's Constitution and Municipal Home Rule Law ' 10(1), as plaintiffs in such cases are required to demonstrate some personal interest in the dispute beyond that of “any taxpayer.” See Matter of Transactive Corp. v. New York State Dept. of Social Servs., 92 NY2d 579. As they could not show this, the suit could not go forward on this second basis, either.
Intervenors React to the Decision
In a statement issued by Lambda Legal following the Second Department's ruling, its lead attorney in the case, Susan Somer, offered sharp criticism of the plaintiffs: “The Alliance Defense Fund has wasted the courts' time and taxpayers' money in their years of unsuccessful cases attacking these marriages in New York and the government officials who refuse to discriminate against lesbian and gay New Yorkers.”
In the same release, Michael Sabatino, one of the men Lambda Legal represented, had a more personal comment to offer: “Today the court has re-affirmed that our relationship will be honored in the community where we live and where we make our life together as a married couple. It is a relief to know that we will continue to enjoy the rights and benefits of our marriage.”
Janice G. Inman is Editor-in-Chief of this newsletter.
As with all the recent government orders, laws and judicial decisions concerning same-sex marriage, an order issued by the Westchester County Executive in 2006 requiring recognition of some same-sex marriages did not go unopposed. On Dec. 30, 2008, however, the Appellate Division, Second Department, upheld the legality of the order, affirming a lower court dismissal of a suit claiming the order violated
Arizona Group Presses for Order's Rejection
The dispute that led to the decision in Godfrey v. Spano, — N.Y.S.2d —-, 2008 WL 5413641 (2d Dept. 12/30/08) (Spolzino, J.P., Lifson, Dickerson and Chambers, J.J.), arose in 2006 after Westchester County Executive Andrew J. Spano issued Executive Order No. 3 of 2006, which directed all departments, boards, agencies, and commissions of Westchester County under the County Executive's jurisdiction “to recognize same sex marriages lawfully entered into outside the State of
As it does with so many national laws and judicial decisions involving same-sex marriage, the conservative, Arizona-based Alliance Defense Fund stepped in. It brought suit on behalf of three named plaintiffs who are Westchester County taxpayers. And, as is also nearly always the case when gay and lesbian New Yorkers' rights are challenged, Lambda Legal intervened in the suit, this time representing a
The lawsuit claimed that the executive order represented an invalid exercise of the County Executive's authority. The first cause of action alleged that the order amounted to illegal legislation in the area of domestic relations and marriage, and that the executive's actions should be prevented in accordance with General Municipal Law ' 51 (“All officers, agents, commissioners and other persons acting, or who have acted, for and on behalf of any county, town, village or municipal corporation in this state, and each and every one of them, may be prosecuted, and an action may be maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons ' “). The second cause of action claimed the executive order violated the
Supreme Court, Westchester County (Lefkowitz, J), inter alia, granted the County Executive's cross motion to dismiss for failure to state a cause of action and declared that the Executive Order was a valid exercise of the County Executive's power, was not an illegal act and did not violate the State Constitution or the Municipal Home Rule Law. The plaintiffs appealed.
Second Department Affirms
The Second Department dispensed with the first cause of action by noting that the plaintiffs were seeking only a declaratory judgment, and they were therefore entitled to relief only if the challenged act was illegal and was “such as to imperil the public interests or calculated to work public injury or produce some public mischief.'”
The appellate court also agreed with the lower court that the plaintiffs lacked standing to sue in accordance with
Intervenors React to the Decision
In a statement issued by Lambda Legal following the Second Department's ruling, its lead attorney in the case, Susan Somer, offered sharp criticism of the plaintiffs: “The Alliance Defense Fund has wasted the courts' time and taxpayers' money in their years of unsuccessful cases attacking these marriages in
In the same release, Michael Sabatino, one of the men Lambda Legal represented, had a more personal comment to offer: “Today the court has re-affirmed that our relationship will be honored in the community where we live and where we make our life together as a married couple. It is a relief to know that we will continue to enjoy the rights and benefits of our marriage.”
Janice G. Inman is Editor-in-Chief of this newsletter.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.