A key issue in Nassau's lawsuit against the state control board seeking to seize its finances is that the move violates the state constitution.
The argument, which attorneys for that board, the Nassau Interim Finance Authority, sought to strike down in a rebuttal Thursday, hinges on an obscure provision of state law that legal and state government experts said is untested in the courts.
County Executive Edward Mangano's lawsuit argues that the New York State Constitution says that the powers of local governments "may be repealed, diminished, impaired or suspended" by the state only if state lawmakers enact legislation to do so in consecutive years.
The constitution's very next clause gives state lawmakers the power "to act in relation to the property, affairs or government of any local government" if the governor and legislature agree.
The clauses "are in direct conflict," said Eric Lane, a Hofstra Law School professor of public law and public service.
While conceding no re-enacting vote took place, NIFA, in its legal brief Thursday, said the statute does not apply because Nassau lawmakers passed a home rule message in 2000 requesting the state agency's intervention.
"A municipality can hardly claim that its domain has been invaded by legislation it asked the state to enact," wrote NIFA attorneys Judith Kaye - the former chief judge of the state's highest court - and Christopher Gunther of the Manhattan firm Skadden Arps.
More than 45 years after the re-enactment statute was added to the state constitution, Kaye and Gunther wrote that Nassau "cannot cite a single authority for the proposition that a statute enacted pursuant to a home rule message requires re-enactment."
Frank Mauro, the executive director of the Fiscal Policy Institute in Albany, said Mangano's lawsuit doesn't specify what local government power is being "repealed, diminished, impaired or suspended" by the NIFA law.
"His citing of the constitution is correct," Mauro said. "But that doesn't prove that NIFA does these bad things."
Gerald Benjamin, a SUNY New Paltz political science professor and expert on state law, said he is skeptical that Nassau can win an argument that NIFA violates the county's home rule authority. "Public authorities have been established and operated for generations in other jurisdictions," he said.
Mangano is not seeking to invalidate all state authorities that govern local governments, Nassau County Attorney John Ciampoli said. "What we are saying is not that they can't do it," he said, "but in these circumstances, they are breaking the law."
Asked to respond to NIFA's contention that Nassau's argument is without legal precedent, Ciampoli said: "That's why we have courts."