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Rockland Supreme Court Not Bound By Decisions In Fourth Department
By Michael Starvaggi
As discussed in companion RCBJ articles, Clarkstown Supervisor George Hoehmann, along with Councilman Donald Franchino and Clarkstown resident Thomas Foley, have filed a lawsuit in Rockland County Supreme Court seeking to invalidate the Town’s 2014 term limits law.
The primary theory of the case is that, because the law provides that it may only be repealed by a supermajority (majority plus one) of the Town Board, it was required to be the subject of a public referendum when it was passed. This requirement, the plaintiffs argue, is found in Municipal Home Rule Law § 23, which provides that any local law which “abolishes, transfers or curtails any power of an elective officer” must be the subject of a public referendum.
The Complaint cites as authority, Parker v. Town of Alexandria, 163 A.D.3d 552, a 2018 case from the Fourth Judicial Department, invalidating a town law related to employee health benefits which also required a supermajority vote for any amendment, revocation or modification. The Parker Court ruled that the supermajority provision was a curtailment of power which required a referendum under Municipal Home Rule Law § 23. And because no referendum had been passed, the law was invalid.
While both sides in the Clarkstown case will certainly cite extensively to cases and other law supporting their positions as the Clarkstown case proceeds, the Plaintiffs will likely rely on Parker as a key precedent to support their claims. However, the existence of the Parker case alone is not determinative of the result in Clarkstown.
Because Parker is a decision from another Judicial Department (the Clarkstown case resides in the Second Department), it is possible that the Rockland County Court will simply disregard its precedent, analyze the law independently and determine that Municipal Home Rule Law § 23 does not require a referendum based on the presence of a supermajority clause. This would lead to what is referred to as a split between the Departments – namely that two or more Departments reach opposing conclusions on the same question of law. In those cases, the New York State Court of Appeals often must weigh-in on which interpretation is the correct one. That appellate process, however, can take many years.
In addition, even if the Court in the Clarkstown case were to follow the general reasoning of Parker, namely that Municipal Home Rule Law § 23 requires a referendum as to the supermajority clause, the Court may refuse to extend that conclusion to the entire law. In other words, the Court can conclude that the curtailment of power relates only to the requirement that a supermajority is needed to amend or annul the term limits law, not to the term limits themselves. Therefore, the law can be severed so that the supermajority aspect of the law would be removed, but the term limits would remain in place. Although this argument was rejected in the Parker case, the Rockland County Court may apply its own interpretation of the law as to the question of severance and strike only the supermajority provision.
The Defendants are also likely to raise defenses that, because Supervisor Hoehmann supported and voted for the term limits law when it was initially passed, he cannot now oppose its validity. These defenses would likely be in the nature of estoppel or unclean hands, both of which are arguments based on equity. It is possible that the decision to add a Plaintiff who is simply a Clarkstown voter and not on the Town Council, and a Councilperson who was not yet on the Board when the law was passed, was made, in part, to protect against the possibility that defenses such as those will result in Hoehmann being dismissed from the case.
In any event, the litigation surrounding the term limits law is likely to continue for the foreseeable future and the RCBJ will continue to provide information and analysis as the case evolves.
Michael Starvaggi is a Nyack-based attorney. firstname.lastname@example.org
This article is intended for general informational purposes
only and shall not be deemed to give individual legal advice.
 This is the citation in the Complaint, which appears to be incorrect. The citation for Parker v. Town of Alexandria, is 163 A.D.3d 55.
 The Parker Court stated, “[w]here . . . a local law is subject to a mandatory referendum, the failure to enact it by referendum renders the entire law invalid.” 163 A.D.3d at 58.
Editor’s Note: During Supervisor George Hoehmann’s tenure, the town council has passed several other laws requiring supermajorities that are not being challenged in court.