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Parker v. Merlino

decided: April 24, 1981.

BARRY T. PARKER, JAMES S. CAFIERO, DONALD DIFRANCESCO, JOHN H. DORSEY, WAYNE DUMONT, JR., JOHN H. EWING, WALTER E. FORAN, S. THOMAS GAGLIANO, GARRETT W. HAGEDORN, BRIAN T. KENNEDY, LEE B. LASKIN, JAMES J. VREELAND, JR., JAMES H. WALLWORK, MEMBERS OF THE SENATE OF THE STATE OF NEW JERSEY AND INDIVIDUALLY; AND RALPH FUCETOLA, CLARENCE A. HAVERLY, RICHARD MAHON, JOHN RICE AND BARBARA TAURIELLO, INDIVIDUALLY, APPELLANTS
v.
JOSEPH P. MERLINO, EUGENE J. BEDELL, JOHN P. CAUFIELD, FRANK J. DODD, BERNARD J. DWYER, ANGELO J. ERRICHETTI, DAVID J. FRIEDLAND, MATTHEW FELDMAN, FRANK X. GRAVES, JOHN T. GREGORIO, WILLIAM J. HAMILTON, FRANCIS X. HERBERT, JOSEPH HIRKALA, WYNONA A. LIPMAN, JOSEPH A. MARESSA, WILLIAM VINCENT MUSTO, CARMEN A. ORECHIO, STEPHEN P. PERSKIE, FRANK E. RODGERS, ANTHONY SCARDINO, JR., WALTER N. SHEIL, JOHN M. SKEVIN, CHARLES B. YATES AND RAYMOND J. ZANE, MEMBERS OF THE SENATE OF THE STATE OF NEW JERSEY; AND SENATE OF THE STATE OF NEW JERSEY AND THE STATE OF NEW JERSEY



ON APPEAL FROM THE DISTRICT OF NEW JERSEY (D.C. Civil No. 80-0141)

Before Adams, Garth and Sloviter, Circuit Judges.

Author: Sloviter

Opinion OF THE COURT

I.

This is an action instituted by all thirteen Republican members of the New Jersey State Senate and certain of their constituents against most of the Democratic members of the Senate. Plaintiffs allege that their federal and state constitutional rights were infringed when, pursuant to the Rules of the Senate, debate on two bills pending before the Senate was cut off by the defendants. The district court granted defendants' motion for summary judgment and dismissed the action. 493 F. Supp. 381 (D.N.J.1980). We affirm.

II.

The facts relevant to this controversy are the subject of a stipulation between the parties and hence are undisputed. Thirteen of the plaintiffs were members of the New Jersey State Senate during the 1979 legislative session, which ended on January 8, 1980 at 12 noon upon sine die adjournment of that body. The remaining plaintiffs are New Jersey residents; each resides in a legislative district represented by one of the plaintiff Senators. The twenty-four individual defendants were Democratic members of the New Jersey Senate during the same session; defendant Senator Joseph P. Merlino served as President of the New Jersey Senate. Also named as defendants are the Senate of the State of New Jersey and the State of New Jersey.

The controversy at issue here revolves around the passage of Assembly Bill 3677 (1979) and the attempted passage of Assembly Bill 3678 (1979) by the Senate on January 8, 1980. At the time in question, the Governor of New Jersey, was a Democrat and Democrats controlled both the New Jersey state Assembly and Senate. Because of a predicted $200 million budget shortfall for the New Jersey budget commencing July 1, 1980, the Governor announced a $340 million dollar tax plan on December 28, 1979. Included in the tax plan were the taxes embodied in Assembly Bills 3677 and 3678. A-3677 was a bill to increase the rate of the New Jersey corporate income tax by 1 1/2 %.*fn1 A-3678 was a bill to amend the basis on which the State tax on motor fuels is calculated.*fn2

A-3677 and A-3678 were introduced in the General Assembly on January 3, 1980 and placed on second reading no reference (not referred to Committee). On Saturday, January 5, 1980, the bills were given their third reading and passed the Assembly. Late that evening the bills were forwarded to the Senate where they were given second reading no reference, thereby placing them in a position to be voted upon by the Senate if listed on the Board List by the Senate President. That same day, the Senate President's office issued a Board List, circulated to all members of the Senate, which calendered A-3677 and A-3678 for a vote for the session scheduled to begin at 2:00 p. m., Monday, January 7, 1980.

At approximately 4:00 p. m. Monday, January 7, 1980, Senate President Merlino called the Senate to order. After considering 29 bills, the Senate was placed under "call" at approximately 9:00 p. m., with only A-3677 and A-3678 remaining to be considered. The Session was recessed upon motion adopted by voice vote over the objection of certain plaintiff Senators. At about 11:40 p. m. the Senate President called the Session to order and announced that A-3677 and A-3678 would be taken up at 10:00 a. m. the following morning, January 8, 1980.

The following day, the plaintiff Senators were present and ready to proceed with the Senate Session at 10:00 a. m. However, the Senate Democrats held a party caucus at 10:00 a. m. and Senate President Merlino did not call the session to order until approximately 11:27 a. m. This was 33 minutes before the constitutionally mandated end of the 1979 Senate Session. A brief colloquy between plaintiff Senator Hagedorn and defendant Senate President Merlino indicated that if the Senate Session were extended by the time-honored practice of setting back the clock, action taken after the actual hour of noon would be attacked on state constitutional grounds.*fn3

After the quorum call, opening prayer and pledge of allegiance, Senator Dwyer (Democrat) was recognized by Senator Merlino. Then Senator Hagedorn, a Republican and the Minority Leader, rose on point of personal privilege to speak concerning what he claimed was the unreasonable manner in which the Governor's tax package, including A-3677 and A-3678, was handled by the Governor and the Legislature. Senator Merlino ruled Senator Hagedorn out of order and would not permit him to speak. Senator Hagedorn appealed this ruling, and the chair was sustained by a vote of 23-13.

At approximately 11:32 a. m. Senator Dwyer, the Democratic Majority Leader who had been previously recognized, spoke briefly in favor of A-3677 and moved the bill. Senator Hagedorn (Republican) then spoke in opposition to the bill for approximately five minutes. Senator Dwyer (Democrat) spoke in response and also responded to a question posed by another Republican Senator. After a brief comment in favor of the tax bills by Senator John Russo, a Democrat not named as a defendant in this action, plaintiff Senator Kennedy (Republican) spoke in opposition to the proposals and complained that as a member of the Revenue, Finance and Appropriations Committee he was not given an opportunity to review the validity of the request for a tax increase because the Committee had not met on the issue.

At approximately 11:47 a. m. defendant Senator Perskie (Democrat) moved the question. His motion was seconded by Senator Dwyer (Democrat). Senator Hagedorn (Republican) objected to the motion. President Merlino ruled the motion ...


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