Supreme Court of the State of New York
County of Erie
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DANIEL T. WARREN, Plaintiff, vs. ARTHUR J. ROTH , Individually, and as Commissioner of the New York State Department of Taxation and Finance and his successors in office, and GEORGE E. PATAKI , Individually, and as Governor of the State of New York, and JOSEPH PASSAFIUME as Director of the Erie County Division of Budget, Management & Finance, and COMMISSIONER OF THE ERIE COUNTY FINANCE DEPARTMENT, and COUNTY OF ERIE, NEW YORK, and CYRUS M. SCHINDLER, JR., Individually, and as President of the Seneca Nation of Indians, and as owner of Big Indian Smoke Shop, and on behalf of all similarly situated owners of retail enterprises, R. K. KARTONS, BUCKTOWN TRADING a/k/a BUCKTOWNTRADING.COM, NATIVE PRIDE a/k/a FIRST AMERICAN TOBACCO a/k/a FIRSTAMERICANTOBACCO.COM, OJIBWAS TRADING POST a/k/a SENECAS TRADING POST a/k/a OJIBWAS.COM a/k/a SENECAS.COM and BIG INDIAN SMOKESHOP, individually and on behalf of all similarly situated enterprises, MILHELM ATTEA & BROS., INC., Individually, and on behalf of all similarly situated wholesalers. Defendants |
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Reply Memorandum of Law in Support of Plaintiff’s Motion to Reargue and to Settle Order
Index # I 2002-4880 |
Point I
Any papers submitted by the County Defendants should not be considered on this motion pursuant to CPLR § 2214(c). I personally served my motion papers upon the County Defendants' counsel on September 4, 2002, 16 days prior to the return date. In the notice of motion, the I invoked CPLR 2214 (b), which requires that answering papers be served 7 days before the return date if the motion is served at least 12 days prior to the return date. Therefore in order for the County Defendants papers to be timely they would have to have been mailed by September 8, 2002 or hand delivered by September 13, 2002. As of September 17, 2002 I have not received any papers from the County Defendants opposing this motion. If this court permits any papers to be considered on behalf of the County Defendants I would respectfully request that I be given time to respond.
Point II
One of the issues to be addressed in this motion is the settlement of the Order to be entered based upon the Court’s Decision dated August 20, 2002. Therefore the court in the interest of judicial economy could decide that portion of the motion first and then proceed to the motion for reargument.
Point III
The State Defendants summarize my arguments as to the propriety of the filing and service of the Supplemental Summons and Amended Verified Complaint as simply that it is proper because it was made within 20 days of the service of the County Defendant’s Answer. This mischaracterizes my position which is that, it is also proper with respect to the State Defendants. Since the State Defendant's motion to dismiss the complaint, which extended their time to answer the complaint, also extended the plaintiff's time to amend the complaint as of right (see, CPLR 3025 [a]; Johnson v. Spence, 286 A.D.2d 481;730 N.Y.S.2d 334; Aikens Construction of Rome, Inc. v. Simons, 284 A.D.2d 946, 727 N.Y.S.2d 213 (4th Dept. 2001); STS Mgt. Dev. v New York State Dept. of Taxation & Fin., 254 AD2d 409, 410). The State Defendants also had an opportunity to make a timely objection because they were served with the Supplemental Summons and Amended Verified Complaint at the same time that they were served with my papers in opposition to their motion to dismiss on or about August 6, 2002. In fact my papers in opposition requested that this court take judicial notice of the Supplement Summons and Amended Verified Complaint. In the State Defendants’ Reply Memorandum in Support of Motion to Dismiss dated August 12, 2002 the State Defendants did not oppose this request for judicial notice nor did they object to the service of the Supplemental Summons and Amended Verified Complaint.
Point IV
State courts have concurrent subject matter jurisdiction over Federal claims (Tafflin v Levitt, 493 U.S. , 110 S Ct 792, reh denied U.S. , 110 S Ct 1942; Yellow Frgt. Sys. v Donnelly, 494 U.S. , 110 S Ct 1566; Simpson Elec. Corp. v Leucadia, Inc., 72 N.Y.2d 450, 455). Under our system of dual sovereignty, "'state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States'" (Yellow Frgt. Sys. v Donnelly, supra, 494 U.S. at , 110 S Ct, at 1568, quoting Tafflin v Levitt, supra; see, Gulf Offshore Co. v Mobil Oil Corp., 453 U.S. 473, 477-478; Dowd Box Co. v Courtney, 368 U.S. 502, 507-508). The construction given by Federal courts to Federal law, including the Constitution, is entitled to "due and great respect" in the State courts, but the latter are not strictly bound in such matters by any but the United States Supreme Court decisions. (See People ex rel. Ray v Martin, 294 NY 61, 73, affd 326 U.S. 496; Myer v Shields & Co., 25 A.D.2d 126; New York Cent. R. R. Co. v Lefkowitz, 46 Misc. 2d 68, mod 28 A.D.2d 735, affd 23 N.Y.2d 1; State v Coleman, 46 NJ 16, cert den 383 U.S. 950 [citing authorities].) "In passing on federal constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is parallelism but not paramountcy for both sets of courts are governed by the same reviewing authority of the Supreme Court." (State v Coleman, supra, p 36.)
While the complaint does seek relief based on breach of statutory rights in the first cause of action based on my standing as a taxpayer, I also allege standing in my individual capacity based on violations of my constitutional rights in the second and third causes of action. Therefore, the zone of interest test analysis (Matter of Dairylea Coop. v Walkley, 38 N.Y.2d 6 [1975]) need not be addressed “when a government agency seeks to act in a manner adversely affecting a party, judicial review of that action may be had.”(see also Heywood Burns et al. v. John C. Egan, 501 N.Y.S.2d 742; 117 A.D.2d 38)
In any event, the zone of interests analysis under § 1983 is limited to ascertaining whether the substantive constitutional or statutory provision confers rights intended by the legislature to be enforceable under the remedial statute. See Holmes v. Securities Investor Protection Corp., U.S., 112 S. Ct. 1311, 1328, 117 L. Ed. 2d 532 (1992) (Scalia, J., concurring) (zone of interests test is an "element of statutory standing"). The test does not require the plaintiff to show an identifiable "legal interest" that may entitle him to relief. Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150 at 153-56, 90 S. Ct. at 830-31; see also Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 399-400, 107 S. Ct. 750, 757, 93 L. Ed. 2d 757 (1987); Valente, 456 U.S. at 254 n. 30, 102 S. Ct. at 1689 n. 30. The test requires only that the relationship between the plaintiff's alleged interest and the purposes implicit in the substantive provision be more than "marginal[ ]." Securities Indus. Ass'n, 479 U.S. at 399, 107 S. Ct. at 757. To attack the constitutionality of a legislative enactment or governmental policy, a plaintiff must demonstrate that he has suffered, or is about to suffer, some actual or threatened injury to a protected interest (Matter of Daniel C., 99 A.D.2d 35 [2d Dept 1984], affd 63 N.Y.2d 927; Cherry v Koch, 126 A.D.2d 346 [2d Dept 1987]). Therefore, the question is not whether plaintiff’s complaint falls within the “zone of interests” of the taxing statutes, but whether plaintiff’s claims are within the “zone of interest” of the Fourteenth and Fifteenth Amendment to the U.S. Constitution and 42 USC § 1983 as well as CPLR § 3001 and the New York Constitution art I, § 11.
Point V
The State Defendants misapprehend the gravamen of the Second Cause of Action. It is not concerning the collection of taxes. It concerns the impending imposition of personal liability for the failure to collect, remit and report taxes under Article 28 and 29 of the Tax Law. As set forth in my initial moving papers and in the complaint, the defendants are either applying this racially neutral statute in a discriminatory manner or in the alternative the facially neutral policy violates equal protection because it was motivated by discriminatory animus and its application results in a discriminatory effect.
Although with regards to the County Defendants there is no liability arising solely under respondeat superior (City of Canton, Ohio v. Harris, 489 U.S. 378, 385; Monell v New York City Department of Social Services of the City of New York, 436 U.S. 658, 690- 691). However, when a municipal employee acts in violation of a person's Federal civil rights pursuant to municipal policy or custom, a different issue is presented. The issue is not whether the employee acted improperly, but whether the municipality acted improperly (Walker v. City of New York, 974 F 2d 293, 296 cert denied 507 U.S. 961 applying, Monell, id.). Then, the municipality may be exposed to § 1983 liability (see, Monell, id.). The plaintiff must show the existence of a constitutionally offensive policy or custom and its causal connection to the injury (Board of the County Commissioners of Bryan County v Brown, 520 U.S. 397). When the challenged action is by an official acting under guise of official policy, the question is whether that official had authority to exercise and did exercise final policymaking in that area (cf., McMillian v. Monroe County, 520 U.S. 781, 785-786 [Alabama counties lacked law enforcement authority, hence sheriff not a county policymaker; county not liable for sheriff's acts]; Jett v Dallas Independent School District, 491 U.S. 701, 737), which requires, in the first instance, reference to State law (McMillian, at 786). Thus, an unconstitutional governmental policy may be inferred either from the official pronouncements and actions of a governmental agency, or from custom. A single decision by a municipal official with final policy making authority may also create a municipal policy. See Pembaur v. Cincinnati, 475 U.S. 469, 480 (1986); see also Krulik v. Board of Educ. of New York, 781 F.2d 15, 23 (2d Cir. 1986)(stating that "an individual official's acts can rise to the level of 'policy' when 'senior personnel' knowingly 'acquiesce' in their subordinates' behavior"). There is no qualified immunity for a municipalities good faith constitutional violations (Owen v. City Independence, 445 U.S. 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673). As the U.S. Supreme Court stated “The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens' constitutional rights.” (Owen v. City Independence, supra)
It is well settled that there are three standards that may be applied in reviewing equal protection challenges: strict scrutiny, heightened scrutiny, and rational basis review (Cleburne v Cleburne Living Ctr., 473 US 432, 440-441). Where governmental action disadvantages a suspect class (Loving v Virginia, 388 U.S. 1; Korematsu v United States, 323 U.S. 214), national origin (see Castaneda v Partida, 430 U.S. 482; Hernandez v Texas, 347 U.S. 475), alienage (Nyquist v Mauclet, 432 U.S. 1; Matter of Griffiths, 413 U.S. 717; Sugarman v Dougall, 413 U.S. 634; Graham v Richardson, 403 U.S. 365; cf. Foley v Connelie, 435 U.S. 291), or if it impinges upon a "fundamental interest" such as voting (Dunn v Blumstein, 405 U.S. 330; Harper v Virginia Bd. of Elections, 383 U.S. 663) the conduct must be strictly scrutinized and will be upheld only if the government can establish a compelling justification for the action (Sobereal-Perez v Heckler, 717 F2d 36, [2nd Circuit, 1983]; McLaughlin v. Florida, 379 U.S. 184, 192 (1964); Graham v. Richardson, 403 U.S. 365 (1971)).
The State Defendants assert that New York Association of Convenience Stores v. Urbach, 275 A.D.2d 520 (3rd Dept 2000) is some how dispositive. That case did not involve the suspect classification based on race or alienage as the claim at bar does. Therefore it was decided using the rational basis review. The general rule is that government action is presumed to be valid and will be sustained if the classification drawn by the statute or policy is rationally related to a legitimate state interest. Schweiker v. Wilson, 450 U.S. 221, 230 (1981); United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 174-175 (1980); Vance v. Bradley, 440 U.S. 93, 97 (1979); New Orleans v. Dukes, 427 U.S. 297, 303 (1976). However, when a statute or policy classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy -- a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest. McLaughlin v. Florida, 379 U.S. 184, 192 (1964); Graham v. Richardson, 403 U.S. 365 (1971). Similar oversight by the courts is due when state laws impinge on personal rights protected by the Constitution. Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969); Shapiro v. Thompson, 394 U.S. 618 (1969); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942). Secondly it did not involve the imposition of personal liability but rather the tax collection scheme.
Point VI
It should be noted at this juncture that the County Attorney’s Office may eventually have a conflict in representing the County of Erie and the two county officials. There may come a time when their interest may diverge. The County may want to assert that they were not working within the scope of their employment.
Point VII
Likewise the State Defendants misapprehend the gravamen of the Third Cause of Action. It, as well, is not concerning the collection of taxes, but rather vindicating the effects of an egregious and flagrant violation of the separation of powers doctrine has on plaintiff’s vote. The New York Court of Appeals has recognized that “allegations of governmental action impinging upon the constitutional separation of powers may bear so heavily on the right to vote as to dilute or impair it” (Rudder v. Pataki, 93 N.Y.2d 273;711 N.E.2d 978;689 N.Y.S.2d 701). The State Defendants established their own policy in contravention of the Court of Appeals ruling in Snyder v. Wetzler; 620 N.Y.S.2d 813; 84 N.Y.2d 941 (1994) and the United States Supreme Court decision in Department of Taxation & Fin. of N.Y. v Milhelm Attea & Bros., 512 U.S. 61, 129 L. Ed. 2d 52, 114 S. Ct. 2028 together with the policy established by the legislature as set forth in Articles 12-a, 20, 28 and 29 of the Tax Law and by the people of this state pursuant to Article XVI of the State Constitution. Defendant Pataki with full knowledge of his lawful duties has consciously, intentionally and willfully chose to establish a policy based on race or alienage without lawful authorization. Defendant Pataki has even admitted that legislative approval for this change in policy was necessary (Amended Verified Complaint ¶ 43) and has failed to obtain such authorization (Amended Verified Complaint ¶ 49). This has rendered plaintiff’s vote ineffective in the area of taxation policy. This policy also weighs the vote of Native Americans more than non-Native Americans thereby violating the “one man, one vote” principle in addition to impairing, diluting and abridging my right to vote (Amended Verified Complaint ¶ 73).
Wherefore, plaintiff respectfully prays for an Order granting reargument of Defendant Pataki and Roth’s motion to dismiss the complaint and the Defendants Joseph Passafiume, Commissioner of the Erie County Finance Department, and the County of Erie, New York’s, motion for summary judgment pursuant to CPLR § 2221 and upon granting reargument reinstatement of the second and third causes of action in the Amended Verified Complaint and to settle the order and judgment to be entered in this action based on this Court’s Decision dated August 20, 2002, together with such other, further or different relief as the court deems just and proper.
DATED: September 17, 2002
Buffalo, New York
Yours, etc.,
_______________________________
Daniel T. Warren
Plaintiff, Pro Se
836 Indian Church Road
West Seneca, New York 14224-1235
TO: Frederick G. Attea, Esq.
Erie County Department of Law
69 Delaware Ave. – Suite 300
Buffalo, New York 14202
Peter B. Sullivan, Esq.
Office of the Attorney General
107 Delaware Avenue
Buffalo, New York 14202