CHAVIS v. NEW YORK TEMPORARY STATE COMMISSION ON LOBBYING (2005)

Cross appeals from a judgment of the Supreme Court (Malone Jr., J.), entered August 27, 2004 in Albany County, which converted an application, brought pursuant to CPLR article 78, into an action for declaratory judgment and declared Legislative Law § 1-n (b) and (c) unconstitutional.

By a proceeding commenced pursuant to CPLR article 78, plaintiffs sought to, inter alia, compel defendant New York Temporary State Commission on Lobbying (hereinafter Commission) to comply with the State Administrative Procedure Act (hereinafter SAPA) by contending that the Commission was an “agency” subject to SAPA (see State Administrative Procedure Act § 102 [1] ).   Supreme Court converted the proceeding into a declaratory judgment action and thereafter held that the Commission is not an “agency” bound by SAPA and that Legislative Law § 1-n (b) and (c) are unconstitutional under the Due Process Clauses of both the federal and state constitutions.   Both parties appeal.

 SAPA defines an “agency” as “any ․ commission ․ at least one of whose members is appointed by the governor, [which is] authorized by law to make rules or to make final decisions in adjudicatory proceedings but [which] shall not include ․ agencies in the legislative and judicial branches” (State Administrative Procedure Act § 102[1] ).   The Commission was established by the Lobbying Act (see Legislative Law § 1-b), which provides that all of its members shall be appointed by the governor;  some are nominated by legislative leaders (see Legislative Law § 1-d [a] ).   Concerning the Commission's rule-making authority, Legislative Law §§ 1-p and 1-q grant powers which fall squarely within State Administrative Procedure Act § 102(2) (see Matter of Alca Indus. v. Delaney, 92 N.Y.2d 775, 778, 686 N.Y.S.2d 356, 709 N.E.2d 97 [1999] ).   Had we not so determined, we would have still found that the Commission is bound by SAPA since it is authorized to make final decisions in adjudicatory proceedings where the legal rights of the parties are determined (see Bolton-St. Johns, Inc. v. New York Temporary State Commn. on Lobbying, Sup. Ct., Albany County, Nov. 9, 2004).   We also find the Commission to be an executive agency based upon its funding sources and enforcement duties (see Legislative Law § 1-d [c][1] ).¹

 Nor do we find Legislative Law § 1-n (b) and (c) unconstitutional. “Legislative enactments enjoy a strong presumption of constitutionality ․ [and] courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional” (LaValle v. Hayden, 98 N.Y.2d 155, 161, 746 N.Y.S.2d 125, 773 N.E.2d 490 [2002];  see Matter of Frontier Ins. Co. v. Town Bd. of Town of Thompson, 285 A.D.2d 953, 955, 728 N.Y.S.2d 311 [2001] );  such finding should be made “only as a last resort” (Matter of McGee v. Korman, 70 N.Y.2d 225, 231, 519 N.Y.S.2d 350, 513 N.E.2d 236 [1987] ).  Legislative Law § 1-n (b) and (c) detail the procedure which the Commission must follow if, after an investigation, audit or other authorized inquiry (see Legislative Law § 1-d [c] ), it suspects that an individual or entity has willfully and knowingly failed to comply with the Lobbying Law. A failure is subject to a civil penalty in an amount to be assessed by the Commission after it provides, by certified, first-class mail, written notice of its intent to assess a penalty and the basis for it;  the amount is determined only after a hearing at which the parties are entitled to present evidence.   The legislative history, deemed paramount in determining intent (see Matter of Albano v. Kirby, 36 N.Y.2d 526, 530, 369 N.Y.S.2d 655, 330 N.E.2d 615 [1975] ), explains that “[w]ritten notice and the opportunity for a hearing must precede [the] assessment [of a civil penalty]” (Mem. of Div. of Budget, Bill Jacket, L. 1977, ch. 937, at 3).   Since we interpret the statute as requiring a hearing to address both the basis for and the amount of an assessment, we do not find the challenged provisions to be an abridgement of property without due process.

Accordingly, the judgment of the Supreme Court which declared Legislative Law § 1-n (b) and (c) unconstitutional, as well as its determination that the Commission is not an agency and, therefore, not subject to SAPA, is reversed.

ORDERED that the judgment is reversed, on the law, without costs, and it is declared that Legislative Law § 1-n (b) and (c) have not been shown to be unconstitutional.

FOOTNOTES

1.   Notably, the official New York State Web site also identifies the Commission as an executive agency.

PETERS, J.P.

MUGGLIN, ROSE, LAHTINEN and KANE, JJ., concur.