At approximately 11:32 a.m., Senator Dwyer, the Democratic Assistant Majority Leader, rose to move and speak in favor of A-3677, noting that the bill would raise $ 90 million dollars per year by increasing the corporate tax rate from 71/2% to 9% per year. He stated that this bill was part of the original tax package which was passed in 1976, and was intended to offset the loss of various business taxes which had been repealed as part of that tax package. He said that if the Senate did not adopt A-3677, the State would face a serious budget shortfall. He then moved the bill.
Senator Hagedorn spoke next in opposition to the bill. He explained that he was being deluged by telegrams and letters in opposition to the Governor's $ 340,000,000 tax program. Senator Hagedorn spoke for approximately five minutes and was then followed again by Senator Dwyer, who responded to Minority Leader Hagedorn.
Senator Foran next spoke and posed a question to the sponsor through the Senate President. He asked about the funds to be generated in 1979, and Senator Dwyer responded that an additional $ 45,000,000 (in addition to the $ 90,000,000) would be raised because of the overlap in the remaining six months of the current fiscal year.
Senator John Russo next rose. He indicated that the budget increases under the Byrne Administration were not as large as under the previous Cahill Administration, and that the increase in spending referred to by Senator Hagedorn was due to the income tax which represented an assumption of local costs previously paid from local property taxes.
Senator Kennedy next rose to speak 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. He said that he had to rely on information provided by newspaper reports. He questioned whether there was a budget shortfall, pointing out, among other things, that passage of this tax package was premature as it was not clear that federal revenue sharing funds would not be provided, and that it was possible the State would have the use of commuter tax revenues presently being held in reserve.
At approximately 11:47 a.m., Senator Perskie was asked by Senator Merlino, "Why do you rise?" Senator Perskie replied, "I rise to move the question." His motion was seconded by Senator Dwyer.
Senator Hagedorn objected to the motion. Senator Merlino ruled the motion in order and non-debatable, citing Rule 93(d) of the Senate Rules. Rule 63 of the Senate Rules (limiting the number and length of speeches by Senators on a bill) was not discussed. Senator Hagedorn appealed the ruling to the full Senate.
Senator Parker rose on a point of personal privilege to protest the denial of the right to speak on the bill. Senator Merlino ruled him out of order. Senator Parker requested the Republican Senators to leave the floor because it was the first time debate was cut off in the Senate. Senator Dumont and Senator Wallwork also rose to speak but were not recognized by Senator Merlino, who stated the question had been called.
Senator Merlino called for a vote on the motion. It carried 23 to 4 (several Republican Senators had left the floor in protest of the Senate President's rulings.) All of the defendant Senators voted in favor of the motion.
Senator Dumont rose on a point of personal privilege, noting that in his twenty-six years in the Senate no Senator had ever been denied the right to speak on a bill. Senator Merlino ruled him out of order, saying the question had been called and must be followed by a vote on the bill.
Senator Merlino called the question and A-3677 passed 21-4. (The Senate journal now indicates that the final vote was 21-15.)
At 11:53 a.m. the Secretary called A-3678 and, following a similar but even more abbreviated procedure, A-3678 was voted on at 11:55 a.m. It was defeated.
At 12:00 Senator Dwyer moved that the Senate adjourn sine die. The Senate President adjourned the Senate sine die, thereby ending the 1978-1979 Senate Session.
Later that same day, January 8, 1980, Governor Byrne signed A-3677 into law as P.L.1979, c. 280.
The rules of the Senate in effect for the 1979 Senate Session, a copy of which was attached to the stipulation, were adopted by voice vote at the Senate Session on January 9, 1979, and they remain in effect for the current 1980 Session, with one change not here pertinent.
In essence, plaintiffs contend that the Senator plaintiffs were deprived of their First Amendment right to free speech when they were not permitted to speak on the Senate floor; that the legislative process inherent in a representative form of government is dependent upon the free flow of ideas which arise in the course of debate on the floor of the legislature, and that, therefore, the other plaintiffs have been unconstitutionally deprived of full representation by their elected officials when those officials have been prevented from speaking on pending bills.
III. The Law
A. Defenses Not Going to the Merits:
Defendants have raised a number of defenses which do not go to the merits of the case.
First, they urge that the action is barred by the Tax Injunction Act of 1937, 28 U.S.C. § 1341, which reads:
The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.
Defendants contend that part of the relief which plaintiffs seek, a judgment declaring P.L.1979, c. 280 (a tax act) unconstitutional due to the manner in which it was adopted, would, in effect, enjoin, suspend or restrain the assessment, levy and collection of New Jersey's increased corporation business tax. This, they argue, the Court does not have jurisdiction to do, citing Tully v. Griffin, Inc., 429 U.S. 68, 97 S. Ct. 219, 50 L. Ed. 2d 227 (1976); Robinson Protective Alarm Co., etc. v. City of Philadelphia, 581 F.2d 371 (3d Cir. 1978); Non-Resident Taxpayers Ass'n v. Municipality of Philadelphia, 478 F.2d 456 (3d Cir. 1973). Defendants note that suits predicated upon alleged violations of civil rights under 42 U.S.C. § 1983 of the Civil Rights Act cannot avoid the jurisdictional restraints imposed by § 1341, Kimmey v. H. A. Berkheimer, Inc., 376 F. Supp. 49 (E.D.Pa.1974), aff'd 511 F.2d 1394 (3d Cir. 1975). They contend that the United States Supreme Court case of Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S. Ct. 1070, 87 L. Ed. 1407 (1943), establishes that § 1341 deprives district courts of jurisdiction over declaratory judgment actions as well as injunction proceedings if state tax legislation is involved.
Finally, defendants argue that the present case is not within the statutory exception set forth in § 1341 because plaintiffs have a "plain, speedy and efficient remedy" in the state courts to contest the validity of P.L.1979, c. 280, namely, the procedures provided in N.J.S.A. 1:7-1, et seq. Under that statute two or more citizens of the State, within one year after a law has been filed with the Secretary of State, may apply to the Superior Court, Appellate Division, to have such law declared void if not duly passed by both houses of the Legislature. Defendants argue that notwithstanding the New Jersey rule of law precluding state courts from interfering in legislative practices and proceedings, the state courts would nevertheless pass upon such practices and proceedings if constitutional rights were at stake, Kligerman v. Lynch, 92 N.J.Super. 373, 223 A.2d 511 (Ch.Div.1966), cert. den.; 389 U.S. 822, 88 S. Ct. 49, 19 L. Ed. 2d 74 (1967).
Plaintiffs, on the other hand, assert that it has not yet been determined whether § 1341 deprives district courts of jurisdiction over actions seeking a declaratory judgment of invalidity of a tax act, contending that in Great Lakes Dredge and Dock Co. v. Huffman, supra, the Supreme Court specifically declined to decide that question, 319 U.S. 293 at 299, 63 S. Ct. 1070 at 1073, 87 L. Ed. 1407. They contend that the circumstances of their case are extraordinary and exceptional, empowering the Court to accept jurisdiction.
Further, plaintiffs argue that they do not have a "plain, speedy and efficient remedy" in the state courts. They maintain it would be impossible to raise in those courts the constitutional questions which are at the heart of the present case for the reason that the state courts would not interfere with the procedures by which the Senate conducted its business. This would violate established state principles of separation of powers, Passaic Co. Bar Ass'n v. Hughes, 108 N.J.Super. 161, 260 A.2d 261 (Ch.Div.1969).
In my opinion, it is unnecessary to resolve these questions at this time. The principal thrust of plaintiffs' action is a determination of the validity of Senate rules which were used to cut off debate and which remain available to cut off debate in the future. Eliminating the request to declare invalid P.L.1979, c. 280, this would not be an action to enjoin, suspend or restrain the assessment, levy or collection of a state tax. Rather, the action would be limited to plaintiffs' requests for relief from the effects of the Senate Rules limiting debate.
Defendants' reliance on the abstention doctrine is not appropriate in this case. There do not appear to be any unsettled state law issues the resolution of which is preliminary to consideration of the pending federal constitutional question, Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941).
Defendants assert that this matter is not a case or controversy within the meaning of Article III, Section 2 of the United States Constitution and thus is outside the jurisdiction of the Courts of the United States. The test is whether a plaintiff seeks merely advice or whether a real question of conflicting legal interests is presented for judicial determination, Aetna Life Insurance Company v. Haworth, 300 U.S. 227, 57 S. Ct. 461, 81 L. Ed. 617 (1937). It is clear to me that the present case does present a real question of conflicting legal interests. Plaintiffs assert that the application of existing Senate rules have deprived them in the past and threaten in the future to deprive them of an important constitutional right, namely, the right to conduct a debate upon pending legislation before a vote. Plaintiffs seek in this action to terminate these practices which limit debate. This is a case or controversy in which both classes of plaintiffs have an interest and is properly before the Court within the principles set forth in Young Women's Christian Association, New Jersey v. Kugler, 342 F. Supp. 1048 (D.N.J.1972), vacated and remanded, 475 F.2d 1398 (3d Cir. 1973), aff'd, 493 F.2d 1402 (1974), cert. den. 415 U.S. 989, 94 S. Ct. 1587, 39 L. Ed. 2d 885 (1974).
Defendants advance three grounds to support their argument that plaintiffs' claims are not justiciable: (i) the issue before the Court involves a political question and thus is not susceptible to judicial review; (ii) the doctrine of separation of powers precludes a court from interfering with the internal workings of the Legislature; and (iii) members of a state legislature enjoy immunity from suit brought under 42 U.S.C. § 1983 to the extent the activities complained of were within the sphere of their legislative activity.
To support its separation of powers argument defendants rely to a great extent upon federal court cases which hold that federal courts normally will refrain from adjudicating disputes grounded upon internal procedures of Congress and upon state court cases which hold that state courts normally will refrain from adjudicating disputes grounded upon internal procedures of the state legislature, e.g., United States v. Ballin, 144 U.S. 1, 12 S. Ct. 507, 36 L. Ed. 321 (1892); Brown v. Heymann, 62 N.J. 1, 297 A.2d 572 (1972); Reingold v. Harper, 6 N.J. 182, 78 A.2d 54 (1951).
Neither of those situations is now before the Court. Here, a federal court is being asked to review the allegedly unconstitutional effect of the internal operating procedures of a state legislature.
Defendants' political question argument, their separation of powers argument, and their legislative immunity argument were addressed and disposed of by Judge Brotman in Gewertz v. Jackman, 467 F. Supp. 1047 (D.N.J.1979). Quoting from his opinion (omitting citations):
. . . There is no bar to this court's review based upon the political question or the separation-of-powers doctrines. Those limitations on federal judicial review apply only where the court is faced with a challenge to action by a coordinate branch of the federal government. . . . The case at bar involves a question of constitutional interpretation, an area peculiarly within the province of the federal courts, with regard to the actions of state legislators. . . .
Defendants further raise the question of immunity, on the basis of both the federal and New Jersey constitutional speech and debate clauses, as well as under common law. It is clear that the speech and debate clause immunity in Art. I, § 6, of the federal constitution has no application to the members of state legislatures. . . . Furthermore, Art. IV, § 4, P 9, of the New Jersey Constitution, which tracks the federal speech and debate clause, cannot immunize a state legislator from liability for violation of federal constitutional rights made actionable by 42 U.S.C. § 1983. The Supremacy Clause, Art. VI of the United States Constitution, clearly mandates this conclusion. . . .