Judge dismisses both lawsuits filed by Chemung County Executive Moss against Legislature

Late in the day on Monday, September 30, 2019, Judge Eugene Faughnan, a 6th Judicial District Supreme Court Judge from Binghamton, issued a 19 page decision in which he dismissed both lawsuits filed by County Executive Moss and County Attorney Hyder Hussain against the Chemung County Legislature, the Legislators individually, and Legislative Attorney Bryan Maggs.

A full copy of the decision can be accessed here and is also embedded below:

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Here are four key takeaways from the decisions:

The Court agreed with all of the fundamental arguments about the legislative attorney position.

In a single paragraph Judge Faughnan summed up what the Legislature has stated from the start, i.e. the history of the legislative attorney position shows appointment power lies with the Legislature, separation of powers requires that the legislative attorney be wholly independent from the executive branch, and the powers of the County Executive and County Attorney are not diminished if the Legislature chooses to appoint its own lawyter.

Judge Faughnan explicitly reached these conclusions on pages 11 and 14 of his decisions, wherein he stated:

The first blog post I wrote about the legislative attorney position was published on February 28, 2019, well before any lawsuits were filed. The post, which can be found here, lays out a nearly identical analysis to the one reached by Judge Faughnan yesterday.

The Court agreed a referendum on this matter was not necessary.

When the Legislature passed an amendment to clarify the County Charter last April, County Executive Moss could have circulated petitions in order to have the amendment appear on this November’s ballot (called a “permissive referendum”), an opportunity about which Moss was undoubtedly aware.

However, Moss chose not to do so, and instead argued the amendment was required to appear on the ballot (called a “mandatory referendum.”) Moss’ argument was premised on the notion that the Legislature’s appointment in some way diminished or curtailed his power.

Judge Faughnan flatly disagreed, stating that Moss’ analysis of the legislative attorney position was wrong. The legislative attorney is not an Assistant County Attorney of an employee within the Department of Law, and therefore none of Moss’ powers whatsoever are impacted:

The Court agreed separation of powers requires the Legislature to be able to draft its own resolutions

This is one of the most significant parts of the decision. Throughout the litigation Moss has repeatedly argued that only the County Attorney should draft resolutions to insure the executive branch has influence over what is presented to the Legislature.

To the contrary, if all of its power to draft resolutions is eliminated, the Legislature is is divested of its primary function – i.e. legislating.

Judge Faughnan rejected Moss’ rationale, holding:

It is interesting to note that just days before the legislative attorney was fired last February, this exact question arose as described in a blog post I wrote found here.

At that time I had drafted a fairly mundane resolution addressing the type of information the executive branch was required to give the Legislature when making appointments to various citizen committees.

Just days before our committee meeting I learned Moss had pulled my resolution from the Agenda, an action that prompted an inquiry into the separation of powers question addressed in yesterday’s decisions.

In my post of February 24, 2019 I wrote:

It is clear our County Charter calls for a strong, independent legislature with the requisite power to serve as the legislative, appropriating and policy-determining body.

However, it appears the ability of the legislature to carry out its duties will be put to an early test on Monday. At our last Personnel Committee Meeting, I made a motion in “Old Business” that was unanimously approved to create a system through which basic background information about appointees to committees and department head positions is provided to members of the Legislature prior to a vote. The Personnel Committee tasked me with the job of creating a system and form that could be used to this end.

Two weeks ago I submitted a resolution laying out my proposal. This resolution clearly falls under the powers of Section 203(f):
“to adopt by resolution all necessary rules and regulations for its own conduct and procedure.”

However, the resolution does not appear on this month’s Agenda. To the best of my knowledge, it was pulled from consideration by the Executive Branch.

Although this is a relatively minor matter, it gets to the heart of a very important issue — the power of the legislature to independently legislate and govern its own affairs. There is no question the drafters of our County Charter envisioned a legislature fully invested with the power to pass this type of resolution. I intend to revisit the topic tomorrow night and hopefully get more clarity on where other legislators stand. This may not be the most critical matter we face this year, but there is no doubt tough decisions lie ahead.

I suppose one positive aspect of this case is that we now have a definitive answer. Yes, the Legislature clearly can independently legislate and govern its own affairs.

Are there any other positive aspects of the litigation?

This is a question that cannot be answered yet.

I common theme I have heard over the past twelve or so hours since the decisions became public is that “it is time to move on.”

I fully agree – in part. When the final bills are paid we will learn that taxpayers funded roughly $100,000 for this litigation, and that an extraordinary amount of time was spent by local government officials as they sorted through these issues. Our community is hurting, and our money and time must be used on far more important matters going forward.

However, the events that have played out since January are about crucial elements of American democracy — respect for the rule of law and the limits of executive power.

I was in the meeting with several other legislators when Moss announced to us that he intended to fire our attorney. We asked him to consider some kind of mediation process to avoid the time and money associated with litigation, but he refused and proceeded to sue us twice.

Just days before the oral argument on these cases in July I had a private meeting with Moss. I did not meet with him as a spokesperson for the Legislature, but rather as an individual for the purpose of trying to work through these issues and, again, save time and money, but he refused and committed to pressing on with litigation.

There are many people who are going to blame both sides for this litigation and the associated time and expense, but I would ask them to think carefully about what options we had. Unchecked executive power is extremely risky, as are flagrant violations of the rule of law. The duty of the legislative body to act as a check on the executive is not something that should ever be taken lightly.

In this case the Legislature defended itself against blatant executive overreach, and, in doing so, created much clearer parameters that will hopefully make the legislative process smoother for our community going forward.

-Christina Sonsire

On a note so minor I left it for the end…

Unfortunately in today’s society judges are often branded as biased or partisan when they make decisions that are unfavorable to elected officials.

I urge anyone who may have those thoughts regarding Judge Faughnan to do some research on him, including a review of his party affiliation and endorsements from his election to the bench in 2013, found here.

I have appeared in front of Judge Faughnan a few times on civil matters, and have always observed him to be fair, pragmatic and unbiased.