need help with the New York Foreclosure Law
Is property tax unconstitutional in New York
_You are comparing apples to oranges.
The correct comparison would be if the stockholder's of a company were
granted a right or priviledge in the corporations by-laws and then the
requisite number of stock-holders voted to take away or repeal that
portion of the by-laws which granted that right or priviledge present
and future stock-holders would be precluded from arguing that they
have that right or priviledge. Present stock-holders because they
affirmatively voted to give that right or privilege back future
stockholders on the ground that they never had that right or privlege.
Since I can see from your postings more of an explanation is in order.
There are two ways to change the New York State Constitution the first
is by amendment the second is by a constitutional convention the
procedures are set out in Article 19 of the Constitution.
No matter which procedure is used to amend, modify or repeal portions
of the constitution the people of the state must vote on the
change(s). If the people vote to adopt the new constituional changes
it will go into effect the following January 1.
In the case of the former Article 1 Section 10 of the New York
Constitution it was repealed by a vote of the people of the State of
New York on November 6, 1962 and its repeal was effective January 1,
1963.
If one wanted to test their theory that this repealed section of the
Constitution renders the current Constitutional provisions providing
for property taxes unconstitutional they can choose one of two ways:
1) not pay the property taxes and raise this repealed section of the
constitution as a defense to the tax foreclosure proceeding that will
be commenced, or
2) commence a declaratory judgment action seeking to declare the
subject tax provision un-constitutional based upon this repealed
section of the constitution.
I doubt that any reasonably prudent person would not choose course 1
even if he believed in this argument on the outside chance he would
loose his home if he were wrong. So that leaves choice 2.
The next question would be to decide on a forum (court) to commence
this action in.
Let us assume for a second that we would have a federal question in
order to proceed in U.S. District Court.
Is there any staute or abstention doctrine that may prevent us from
fully litiating this issue there? Yes.
The Tax-injunction Act 28 USC 1341 which prohibits an injunction
against the assessment, levy or collection of any tax under state law
where a plain, speedy, and efficient remedy may be had in state
courts.
So that leaves us with a declaratory judment action against the State
in State Court.
One person raised the question of Jury trial in this action, and
specifically mentioned the Seventh Amendment to the U. S.
Constitution.
Here comes the tricky part, do we have a right to a jury trial?
The Seventh Amendment of the U. S. Constitution only applies in
Federal Court and is inapplicable in state court.
However, New York Constitution Article 1 Section 2 provides "Trial by
jury in all cases in which it has heretofore been guaranteed by
constitutional provision shall remain inviolate forever; but a jury
trial may be waived by the parties in all civil cases in the manner to
be proscribed by law . . ."
New York Civil Practice Laws and Rules Section 4101 states
" In the following actions, the issues of fact shall be tried by
a jury unless a jury trial is waived or a reference is directed under
section 4317, except that equitable defenses and equitable
counterclaims shall be tried by the court:
1. an action in which a party demands and sets forth
facts which would permit a judgment for a sum of money only;
2. an action of ejectment; for dower; for waste; for
abatement of a nuissance; to recover a chattel; or for determination
of a claim to real property under article fifteen of the real property
actions and proceedings law; and
3. any other action in whch a party is entitled by the
constitution or by express provision of law to a trial by jury."
We are bringing a declaratory judgment action to enjoin the state from
collecting allegedly unconstitutional property taxes and possible
seeking a restoration of property taxes already paid under the
unconstitutional section.
Do wee have a right to a Jury trial. No.
This is essentially an equity claim. The State Constitution does not
guarantee the right to jury trial in cases of which courts of equity
formerly had jurisdiction, for in such cases issues of fact as well as
questions of law were determined by the court, the finding of a jury
on any issue submitted to its consideration serving only to advise the
conscience of the chancellor. There is also no right to a jury trial
in equity actions even where complainant asks money damages as
incidental to main releif sought. See Jamaica Savings Bank v. M. S.
Investing Co., 1937, 274 NY 215, 8 NE2d 493, 112 ALR 1485; and Lynch
v. Metropolitan El R. Co. 129 NY 274, 29 NE 315.
Lets assume for the purpose of this discussion that besides the
declaratory judgment action we can also allege an action at law for
damages as a result of this allegedly un-constitutional act.
Would this give us a jury trial? No.
Joinder in complaint of both legal and equitable causes of action
arising from same transaction constitutes a waiver by plaintiff of his
right to trial by jury. John W. Cowper Co., Inc. v Buffalo Hotel
Development Venture (4 Dept 1984) 99 AD2d 19, 471 NYS2d 913).
Would we be able to assert this cause of action in federal court? No.
The suit would be barred by the 11th amendment of the U.S.
Constitution.
What if we allege the law claim only without the declaratory judgment
action in state court.
Would we be entitled to a jury trial? No.
Then the case must be brought not in New York Supreme Court but the
Court of Claims. New York Constitution Article 6 Section 9 and the
Court of Claims Act. The Court of Claims Act provides for non-jury
trials only.
Following your analysis the law would never changed no matter how many
amendments are made nor what laws are repealed.
One could argue that before the amendment to the constitution to
change the voting age to 18 you had to be 21 to vote and therefore you
cant vote until 21 regardless of the amendment. Which is not logical
once a law is repealed, amended or modified one cannot claim the
benefits of the law as it was prior to the effective date of the
change except in very limited circumstances which this does not meet.
_But the code only says the 'DISTRICT court' can't 'ENJOIN' a state tax
assessment, levy, collection - and then only under cetain conditions.
However, it doesn't say that the district court can't consider whether a
law is unconstitutional or subjects the Plaintiff to a deprivationof
rights. If found uncosntitutional, the assessment, collection, levy
would become moot.
Plus, if the district court claims to have no jurisdiction, and there is
a Federal question, then wouldn't the U.S. Supreme court become the sole
court of jurisdiction? And since the constitution guarantees the right
of redress of grievance, wouldn't the Supreme CT would have to hear it?
The federal jurisdiction question might be wheather the plaintiff is
being denied the equal protection of the law via the state's act of
enforcing inferior statutory law over it's superior fundamental
constitutional law.
If the question before the court involves the deprivation of rights
under the U.S. Constitution then how can the plaintiff's case be suject
to limitations not imposed in the Federal courts?
State and local governments often claim that a plaintiff must file a
notice of claim within 90 days (pursuant to state law); even when the
action involves a claim of deprivation of federal rights. But I believe
there is a recent U.S. Surpeme court decision which ruled that states
can't impose such limitations where congress did not; even when the
claim is brought in state court.
I believe that that decision also remarked that it would be unlikely
that a plaintiff could even get justice in state court where the claim
is against the same government.