Regular Session - February 6, 2012

                                                                   388

 1               NEW YORK STATE SENATE

 2                          

 3                          

 4              THE STENOGRAPHIC RECORD

 5                          

 6                          

 7                          

 8                          

 9                  ALBANY, NEW YORK

10                  February 6, 2012

11                     3:09 p.m.

12                          

13                          

14                  REGULAR SESSION

15  

16  

17  

18  SENATOR JOSEPH E. ROBACH, Acting President

19  FRANCIS W. PATIENCE, Secretary

20  

21  

22  

23  

24  

25  

                                                               389

 1               P R O C E E D I N G S

 2                ACTING PRESIDENT ROBACH:   The 

 3   Senate will come to order.  

 4                I ask everyone present to please 

 5   rise and repeat with me the Pledge of 

 6   Allegiance.

 7                (Whereupon, the assemblage recited 

 8   the Pledge of Allegiance to the Flag.)

 9                ACTING PRESIDENT ROBACH:   We are 

10   joined today by Father Peter G. Young, of the 

11   Mother Teresa Community in Albany, to give our 

12   invocation.

13                REVEREND YOUNG:  Let us pray.

14                We are proud of our elected leaders, 

15   as we were of Van Buren, Fillmore, Arthur, 

16   Cleveland, Theodore and Franklin Roosevelt.  May 

17   we continue the greatness of their dedicated 

18   public service to all of our New York State 

19   citizens.  

20                May we follow in the rich 

21   tradition in the Senators that first met in 

22   Kingston five days after the Declaration of 

23   Independence.  

24                You, O God, have provided our 

25   Senators with outstanding examples to inspire 

                                                               390

 1   those in this Senate chamber for committed 

 2   service to all of our New York State citizens.  

 3                Amen.

 4                ACTING PRESIDENT ROBACH:   Thank 

 5   you, Father.  

 6                The reading of the Journal.

 7                THE SECRETARY:   In Senate, Friday, 

 8   February 3rd, the Senate met pursuant to 

 9   adjournment.  The Journal of Thursday, 

10   February 2nd, was read and approved.  On 

11   motion, Senate adjourned.

12                ACTING PRESIDENT ROBACH:   Without 

13   objection, the Journal stands approved as read.

14                Presentation of petitions.

15                Messages from the Assembly.

16                The Secretary will read.

17                THE SECRETARY:   On page 9, 

18   Senator Maziarz moves to discharge, from the 

19   Committee on Rules, Assembly Bill Number 8904 

20   and substitute it for the identical Senate Bill 

21   Number 6054A, Third Reading Calendar 11.

22                ACTING PRESIDENT ROBACH:    

23   Substitution ordered.

24                THE SECRETARY:   On page 9, Senator 

25   Lanza moves to discharge, from the Committee on 

                                                               391

 1   Rules, Assembly Bill Number 8906 and substitute 

 2   it for the identical Senate Bill Number 6055, 

 3   Third Reading Calendar 12.

 4                ACTING PRESIDENT ROBACH:    

 5   Substitution ordered.

 6                THE SECRETARY:   On page 9, Senator 

 7   Saland moves to discharge, from the Committee on 

 8   Rules, Assembly Bill Number 8908 and substitute 

 9   it for the identical Senate Bill Number 6121, 

10   Third Reading Calendar 16.

11                ACTING PRESIDENT ROBACH:    

12   Substitution ordered.

13                THE SECRETARY:   On page 9, Senator 

14   Skelos moves to discharge, from the Committee on 

15   Rules, Assembly Bill Number 8900 and substitute 

16   it for the identical Senate Bill Number 6126, 

17   Third Reading Calendar 18.

18                ACTING PRESIDENT ROBACH:    

19   Substitution ordered.

20                THE SECRETARY:   And on page 12, 

21   Senator Golden moves to discharge, from the 

22   Committee on Cities, Assembly Bill Number 8691A 

23   and substitute it for the identical Senate Bill 

24   Number 6118A, Third Reading Calendar 78.

25                ACTING PRESIDENT ROBACH:    

                                                               392

 1   Substitution ordered.

 2                Messages from the Governor.

 3                Reports of standing committees.

 4                Reports of select committees.

 5                Communications and reports from 

 6   state officers.

 7                Motions and resolutions.

 8                Senator Libous.

 9                SENATOR LIBOUS:   Mr. President, I 

10   believe Senator Breslin has something to say.

11                ACTING PRESIDENT ROBACH:   Senator 

12   Breslin.

13                SENATOR BRESLIN:   Thank you, 

14   Mr. President.

15                On behalf of Senator Peralta, I move 

16   to amend Senate Bill 677B by striking out the 

17   amendments made on 1/24/12 and restoring it to 

18   its previous print number, 677A.

19                ACTING PRESIDENT ROBACH:    So 

20   ordered.

21                SENATOR BRESLIN:   Thank you, 

22   Mr. President.

23                On behalf of Senator Espaillat, I 

24   move that the following bill be discharged from 

25   its respective committee and be recommitted 

                                                               393

 1   with instructions to strike the enacting 

 2   clause:  Senate Number 6071.

 3                ACTING PRESIDENT ROBACH:   So 

 4   ordered.

 5                SENATOR BRESLIN:   Thank you, 

 6   Mr. President.

 7                ACTING PRESIDENT ROBACH:   Thank 

 8   you, Senator Breslin.

 9                Senator Libous.

10                SENATOR LIBOUS:   Mr. President, 

11   on behalf of Senator Marcellino, on page 14 I 

12   offer the following amendments to Calendar 

13   Number 116, Senate Print 4272A, and ask that 

14   said bill retain its place on the Third Reading 

15   Calendar.

16                ACTING PRESIDENT ROBACH:   The 

17   amendments are received, and the bill will retain 

18   its place on the Third Reading Calendar.

19                Senator Libous.

20                SENATOR LIBOUS:   Thank you, 

21   Mr. President.  

22                On page 9 I offer the following 

23   amendments, on behalf of Senator Hannon, to 

24   Calendar Number 35, Senate Print 5880, and ask 

25   that said bill retain its place on the Third 

                                                               394

 1   Reading Calendar.

 2                ACTING PRESIDENT ROBACH:   The 

 3   amendments are received, and the bill will retain 

 4   its place on the Third Reading Calendar.

 5                Senator Libous.

 6                SENATOR LIBOUS:   On behalf of 

 7   Senator Flanagan, Mr. President, I move to 

 8   amend Senate Bill 4689B by striking out the 

 9   amendments made on 12/9 of 2011 and restoring 

10   it to its original print number, 4689.

11                ACTING PRESIDENT ROBACH:    So 

12   ordered.

13                SENATOR LIBOUS:   Thank you.

14                And, Mr. President, on behalf of 

15   Senator Larkin, on page 14 I offer the 

16   following amendments to Calendar Number 120, 

17   Senate Print Number 4239, and ask that said 

18   bill retain its place on the Third Reading 

19   Calendar.

20                ACTING PRESIDENT ROBACH:   The 

21   amendments are received, and the bill will retain 

22   its place on the Third Reading Calendar.  

23                SENATOR LIBOUS:   Mr. President.

24                ACTING PRESIDENT ROBACH:   Senator 

25   Libous.

                                                               395

 1                SENATOR LIBOUS:   Could we now 

 2   please have the reading of the noncontroversial 

 3   calendar.

 4                ACTING PRESIDENT ROBACH:   The 

 5   Secretary will read.

 6                THE SECRETARY:   Calendar Number 11, 

 7   by Member of the Assembly Heastie, Assembly 

 8   Print 8904, an act to amend the Insurance Law.

 9                ACTING PRESIDENT ROBACH:   Read 

10   the last section.

11                THE SECRETARY:   Section 4.  This 

12   act shall take effect on the same date and in 

13   the same manner as Chapter 597 of the Laws of 

14   2011.

15                ACTING PRESIDENT ROBACH:   Call 

16   the roll.

17                (The Secretary called the roll.)

18                THE SECRETARY:   Ayes, 54.

19                ACTING PRESIDENT ROBACH:   The bill 

20   is passed.

21                THE SECRETARY:   Calendar Number 

22   12, by Member of the Assembly Lopez, Assembly 

23   Print Number 8906, an act to amend the 

24   Insurance Law.

25                ACTING PRESIDENT ROBACH:   Read 

                                                               396

 1   the last section.

 2                THE SECRETARY:   Section 4.  This 

 3   act shall take effect on the same date and in 

 4   the same manner as Chapter 559 of the Laws of 

 5   2011.

 6                ACTING PRESIDENT ROBACH:   Call 

 7   the roll.

 8                (The Secretary called the roll.)

 9                THE SECRETARY:   Ayes, 54.

10                ACTING PRESIDENT ROBACH:   The 

11   bill is passed.

12                THE SECRETARY:   Calendar Number 

13   16, by Member of the Assembly Weisenberg, 

14   Assembly Print Number 8908, an act to amend 

15   Chapter 594 of the Laws of 2011.

16                ACTING PRESIDENT ROBACH:   Read 

17   the last section.

18                THE SECRETARY:   Section 2.  This 

19   act shall take effect immediately.

20                ACTING PRESIDENT ROBACH:   Call 

21   the roll.

22                (The Secretary called the roll.)

23                THE SECRETARY:   Ayes, 56.

24                ACTING PRESIDENT ROBACH:   The 

25   bill is passed.

                                                               397

 1                THE SECRETARY:   Calendar Number 

 2   18, by Member of the Assembly Silver, Assembly 

 3   Print 8900, an act to amend the Insurance Law.

 4                ACTING PRESIDENT ROBACH:   Read 

 5   the last section.

 6                THE SECRETARY:   Section 4.  This 

 7   act shall take effect on the same date and in 

 8   the same manner as Section 5 of Chapter 598 of 

 9   the Laws of 2011.

10                ACTING PRESIDENT ROBACH:   Call 

11   the roll.

12                (The Secretary called the roll.)

13                THE SECRETARY:   Ayes, 56.

14                ACTING PRESIDENT ROBACH:   The bill 

15   is passed.

16                THE SECRETARY:   Calendar Number 

17   42, by Senator Nozzolio --

18                SENATOR BRESLIN:   Lay it aside.

19                ACTING PRESIDENT ROBACH:   The 

20   bill is laid aside.

21                THE SECRETARY:   Calendar Number 

22   47, by Senator Fuschillo, Senate Print 2597, an 

23   act to amend the Vehicle and Traffic Law.

24                ACTING PRESIDENT ROBACH:   Read 

25   the last section.

                                                               398

 1                THE SECRETARY:   Section 4.  This 

 2   act shall take effect on the first of November.

 3                ACTING PRESIDENT ROBACH:   Call 

 4   the roll.

 5                (The Secretary called the roll.)

 6                THE SECRETARY:   Ayes, 54.  Nays, 

 7   2.  Senators Montgomery and Perkins recorded in 

 8   the negative.

 9                ACTING PRESIDENT ROBACH:   The 

10   bill is passed.

11                THE SECRETARY:   Calendar Number 

12   51, by Senator Fuschillo, Senate Print 4070, an 

13   act to amend the Vehicle and Traffic Law.

14                ACTING PRESIDENT ROBACH:   Read 

15   the last section.

16                THE SECRETARY:   Section 3.  This 

17   act shall take effect immediately.

18                ACTING PRESIDENT ROBACH:   Call 

19   the roll.

20                (The Secretary called the roll.)

21                ACTING PRESIDENT ROBACH:    

22   Announce the results.

23                THE SECRETARY:   In relation to 

24   Calendar Number 51, those recorded in the 

25   negative are Senators Adams, Krueger, 

                                                               399

 1   Montgomery, Perkins and Squadron.

 2                Ayes, 51.  Nays, 5.

 3                ACTING PRESIDENT ROBACH:   The 

 4   bill is passed.

 5                THE SECRETARY:   Calendar Number 

 6   63, by Senator Flanagan, Senate Print 4391A, an 

 7   act to amend the Penal Law.

 8                ACTING PRESIDENT ROBACH:   Read 

 9   the last section.

10                THE SECRETARY:   Section 2.  This 

11   act shall take effect on the first of November.

12                ACTING PRESIDENT ROBACH:   Call 

13   the roll.

14                (The Secretary called the roll.)

15                THE SECRETARY:   Ayes, 55.  Nays, 

16   2.  Senators Montgomery and Perkins recorded in 

17   the negative.

18                ACTING PRESIDENT ROBACH:   The 

19   bill is passed.

20                THE SECRETARY:   Calendar Number 

21   78, by Member of the Assembly Heastie, Assembly 

22   Print Number 8691A, an act to amend Chapter 602 

23   of the Laws of 2011.

24                ACTING PRESIDENT ROBACH:   Read 

25   the last section.

                                                               400

 1                THE SECRETARY:   Section 2.  This 

 2   act shall take effect immediately.

 3                ACTING PRESIDENT ROBACH:   Call 

 4   the roll.

 5                (The Secretary called the roll.)

 6                THE SECRETARY:   Ayes, 56.  Nays, 

 7   1.  Senator Avella recorded in the negative.

 8                ACTING PRESIDENT ROBACH:   The 

 9   bill is passed.

10                THE SECRETARY:   Calendar Number 

11   83, by Senator Ball, Senate Print 5270, an act 

12   to amend the Penal Law.

13                ACTING PRESIDENT ROBACH:   Read 

14   the last section.

15                THE SECRETARY:   Section 2.  This 

16   act shall take effect on the first of November.

17                ACTING PRESIDENT ROBACH:   Call 

18   the roll.

19                (The Secretary called the roll.)

20                THE SECRETARY:   Ayes, 55.  Nays, 

21   2.  Senators Duane and Perkins recorded in the 

22   negative.

23                ACTING PRESIDENT ROBACH:   The 

24   bill is passed.

25                THE SECRETARY:   Calendar Number 

                                                               401

 1   88, by Senator Robach, Senate Print 565A, an 

 2   act to amend the Alcoholic Beverage Control 

 3   Law.

 4                ACTING PRESIDENT ROBACH:   Read 

 5   the last section.

 6                THE SECRETARY:   Section 2.  This 

 7   act shall take effect on the 90th day.

 8                ACTING PRESIDENT ROBACH:   Call 

 9   the roll.

10                (The Secretary called the roll.)

11                THE SECRETARY:   Ayes, 55.  Nays, 

12   2.  Senators Duane and Montgomery recorded in 

13   the negative.

14                ACTING PRESIDENT ROBACH:   The bill 

15   is passed.

16                THE SECRETARY:   Calendar Number 

17   97, by Senator Marcellino, Senate Print 947, an 

18   act to amend the Criminal Procedure Law.

19                ACTING PRESIDENT ROBACH:   Read 

20   the last section.

21                THE SECRETARY:   Section 4.  This 

22   act shall take effect on the 30th day.

23                ACTING PRESIDENT ROBACH:   Call 

24   the roll.

25                (The Secretary called the roll.)

                                                               402

 1                THE SECRETARY:   Ayes, 56.  Nays, 

 2   1.  Senator Breslin recorded in the negative.

 3                ACTING PRESIDENT ROBACH:   The 

 4   bill is passed.

 5                THE SECRETARY:   Calendar Number 

 6   106, by Senator Little, Senate Print 343, an 

 7   act to amend the Highway Law.

 8                SENATOR BRESLIN:   Lay it aside.

 9                ACTING PRESIDENT ROBACH:   The 

10   bill is laid aside.

11                THE SECRETARY:   Calendar Number 

12   107, by Senator Marcellino, Senate Print 944, 

13   an act to amend the Vehicle and Traffic Law.

14                ACTING PRESIDENT ROBACH:   Read 

15   the last section.

16                THE SECRETARY:   Section 2.  This 

17   act shall take effect on the first of November.

18                ACTING PRESIDENT ROBACH:   Call 

19   the roll.

20                (The Secretary called the roll.)

21                THE SECRETARY:   Ayes, 57.

22                ACTING PRESIDENT ROBACH:   The 

23   bill is passed.

24                THE SECRETARY:   Calendar Number 

25   113, by Senator Seward, Senate Print 2371, an 

                                                               403

 1   act to amend the Vehicle and Traffic Law.

 2                ACTING PRESIDENT ROBACH:   Read 

 3   the last section.

 4                THE SECRETARY:   Section 2.  This 

 5   act shall take effect immediately.

 6                ACTING PRESIDENT ROBACH:   Call 

 7   the roll.

 8                (The Secretary called the roll.)

 9                THE SECRETARY:   Ayes, 57.

10                ACTING PRESIDENT ROBACH:   The bill 

11   is passed.

12                THE SECRETARY:   Calendar Number 

13   115, by Senator Bonacic, Senate Print 3099A, an 

14   act to amend the Vehicle and Traffic Law.

15                ACTING PRESIDENT ROBACH:   Read 

16   the last section.

17                THE SECRETARY:   Section 3.  This 

18   act shall take effect immediately.

19                ACTING PRESIDENT ROBACH:   Call 

20   the roll.

21                (The Secretary called the roll.)

22                THE SECRETARY:   Ayes, 57.

23                ACTING PRESIDENT ROBACH:   The 

24   bill is passed.

25                THE SECRETARY:   Calendar Number 

                                                               404

 1   117, by Senator Fuschillo, Senate Print 4488A, 

 2   an act to amend the Vehicle and Traffic Law.

 3                ACTING PRESIDENT ROBACH:   Read 

 4   the last section.

 5                THE SECRETARY:   Section 2.  This 

 6   act shall take effect on the 120th day.

 7                ACTING PRESIDENT ROBACH:   Call 

 8   the roll.

 9                (The Secretary called the roll.)

10                THE SECRETARY:   Ayes, 58.

11                ACTING PRESIDENT ROBACH:   The 

12   bill is passed.

13                THE SECRETARY:   Calendar Number 

14   123, by Senator Gallivan, Senate Print 4828, an 

15   act to amend the Social Services Law.

16                ACTING PRESIDENT ROBACH:   Read 

17   the last section.

18                THE SECRETARY:   Section 2.  This 

19   act shall take effect on the 60th day.

20                ACTING PRESIDENT ROBACH:   Call 

21   the roll.

22                (The Secretary called the roll.)

23                THE SECRETARY:   Ayes, 57.  Nays, 

24   1.  Senator Squadron recorded in the negative.

25                ACTING PRESIDENT ROBACH:   The 

                                                               405

 1   bill is passed.

 2                THE SECRETARY:   Calendar Number 

 3   126, by Senator Golden, Senate Print --

 4                SENATOR BRESLIN:   Lay it aside.

 5                ACTING PRESIDENT ROBACH:   The 

 6   bill is laid aside.

 7                Senator Libous, that completes the 

 8   noncontroversial reading of the calendar.

 9                SENATOR LIBOUS:   Thank you, 

10   Mr. President.  

11                In a moment here we'll be going 

12   over the controversial reading of the calendar, 

13   and we'll be taking the bills in order.  If we 

14   could just wait a second.

15                ACTING PRESIDENT ROBACH:   If we 

16   can ring the bell and get the members to the 

17   chamber, we will shortly be starting the 

18   controversial calendar.

19                SENATOR LIBOUS:   Mr. President.

20                ACTING PRESIDENT ROBACH:   Senator 

21   Libous.

22                SENATOR LIBOUS:   If we could 

23   start the controversial calendar with Calendar 

24   Number 106, please.

25                ACTING PRESIDENT ROBACH:   We will 

                                                               406

 1   start the controversial calendar.  

 2                The Secretary will read Calendar 

 3   Number 106.

 4                THE SECRETARY:   Calendar Number 

 5   106, by Senator Little, Senate Print 343, an 

 6   act to amend the Highway Law.

 7                SENATOR BRESLIN:   Explanation.

 8                ACTING PRESIDENT ROBACH:   Senator 

 9   Little, an explanation has been asked for.

10                SENATOR LITTLE:   Thank you.  

11   Thank you, Mr. President.  I'm really pleased 

12   to be able to explain this piece of 

13   legislation.

14                This legislation is supported by 

15   the Adirondack Park Local Government Review 

16   Board, the Adirondack Conservation Council, and 

17   the Adirondack Association of Towns and 

18   Villages.

19                What currently has happened and 

20   has brought the need for this piece of 

21   legislation is, as you know, the Adirondack 

22   Park is in my district.  It's certainly one of 

23   the most beautiful parks in the State of 

24   New York.  The State of New York owns 3 million 

25   of the 6 million acres within the park.  But it 

                                                               407

 1   is not an empty park.  There are over 100 towns 

 2   within that park, there are many roads and 

 3   highways, county roads, state roads and town 

 4   roads within that.

 5                What has happened is the DEC and 

 6   the state has used the laws in County Law -- in 

 7   Section 212 of the Highway Law.  Let me give 

 8   you an example.  So since the 1970s the state 

 9   has bought hundreds of thousands of acres of 

10   land and put it into the Forest Preserve and 

11   they've become part of the park.  

12                If they bought a thousand acres 

13   from Mr. Smith and a thousand acres from 

14   Mr. Jones on this side, and there is a town 

15   road that runs through it, and the town road 

16   has existed for 50 to 100 years, Mr. Jones and 

17   Mr. Smith get compensated for the land that the 

18   state purchased, it becomes part of the state 

19   park, and now the DEC decides to close the road 

20   regardless of what the town has to say.

21                I have two towns who have most 

22   recently had this happen, the Town of Horicon 

23   and the Town of Wells.  Both of those towns 

24   have been plowing this road, maintaining the 

25   road.  It is a dirt road.  However, the DEC, in 

                                                               408

 1   taking the land on both sides, which became 

 2   part of the Forest Preserve, closes the roads 

 3   over the objection of the town.  

 4                Now, in the Adirondack Council's 

 5   objection I will tell you they say:  "The 

 6   decision to close the road was the product of 

 7   an open public process in which a draft of the 

 8   Unit Management Plan, or UMP, was made public.  

 9   A public meeting was held, DEC received public 

10   comments, and a final UMP was then submitted to 

11   the APA for approval."

12                I will tell you, at all of those 

13   public meetings, the town and many different 

14   organizations that I've spoken about spoke 

15   against closing the road.  However, the 

16   decision to close the road was then made final.

17                "The fact that one town board 

18   disagreed with the outcome is hardly grounds 

19   for a wholesale revision of the current law."

20                Let me add that the town board are 

21   the only elected officials in this process.  

22   Everyone else is DEC, APA, appointed people.

23                You know, if there was a 

24   possibility of the state of being able to do 

25   adverse possession against the state, the town 

                                                               409

 1   certainly could have done so.  But you can't do 

 2   that against the State of New York.

 3                And despite the fact that they've 

 4   plowed this road, they've maintained these 

 5   roads for years and years -- one of them goes 

 6   back to -- the West River Road in the Town of 

 7   Wells goes back to when the Town of Wells was 

 8   formed.  So that road has been in existence for 

 9   years.  

10                They decided to close it because 

11   it is in the Forest Preserve and land on both 

12   sides.  Basically, they're taking away public 

13   access to that part of the Forest Preserve.  

14   Because I don't want to insult anyone, but 

15   probably only half the people in this room 

16   could walk into that Forest Preserve without 

17   being able to have that road once the road is 

18   closed.  The disabled can't.  Maybe people with 

19   heart conditions would not be able to get in 

20   it.  

21                I even had someone say to me once, 

22   "You know, the older I get, the more I agree 

23   with you, because I realize that I'm not going 

24   to have access to the Forest Preserves because 

25   I will not going to be able to walk in and do 

                                                               410

 1   it."  

 2                You can't use motorized vehicles, 

 3   you can't do -- this road allows for people to 

 4   get into the New York State Forest Preserve 

 5   that is being paid for by the New York State 

 6   taxpayers.

 7                What I am saying here is that you 

 8   cannot close that road without the approval of 

 9   the town.  And I would hope that you will all 

10   support this bill.

11                Thank you.

12                ACTING PRESIDENT ROBACH:   Senator 

13   Oppenheimer.

14                SENATOR OPPENHEIMER:   Thank you.

15                And it isn't, Senator Little, that 

16   I don't empathize with you, because I can tell 

17   you I had a very similar situation when I was 

18   the mayor of my community and was having a 

19   minor war with the Department of Transportation 

20   on something quite similar, roads that we had 

21   always maintained and that we were trying to 

22   make safer, and we were not able to.

23                 So it isn't that I don't 

24   empathize with you.  But it's just that this 

25   issue has quite broader implications than just 

                                                               411

 1   this particular situation that you have.  

 2                Because this bill removes from the 

 3   DEC its authority to make a final determination 

 4   as to the management of the highways in the 

 5   Adirondack Park.  And it's not just the 

 6   highways.  I think this could set a dangerous 

 7   precedent.  It could weaken the DEC's ability 

 8   to regulate in a Forest Preserve area.

 9                There are a lot of procedural 

10   safeguards to their decision-making and there's 

11   the opportunity for open meetings, public 

12   hearings that have been built into the DEC 

13   decision making.  And it's because I think that 

14   the issue is really much larger, though I 

15   empathize with the issue that you raise.  But I 

16   think it is a dangerous precedent to say that 

17   the DEC's regulations will not be listened to, 

18   will not be obeyed in the Forest Preserve 

19   areas.

20                So I'll be voting no, and I think 

21   there's at least a dozen other people who I 

22   recognize in the past have voted no on this 

23   issue also.

24                Thank you.

25                ACTING PRESIDENT ROBACH:   Thank 

                                                               412

 1   you, Senator.

 2                Senator Squadron.

 3                SENATOR SQUADRON:   Thank you very 

 4   much, Mr. President.  

 5                Would the sponsor yield for a 

 6   question?  

 7                ACTING PRESIDENT ROBACH:   Senator 

 8   Little, will you yield for a question?  

 9                SENATOR LITTLE:   Yes, I would.

10                SENATOR SQUADRON:   Thank you so 

11   much.  

12                And I appreciate the sponsor's 

13   description of the abandonment situation that 

14   the Town of Wells went through.  As I read this 

15   bill, it also applies not just to abandonment 

16   of roads, as that example did, but also to 

17   change in the locations of roads, for example.  

18   Is that correct?  

19                SENATOR LITTLE:   It could change 

20   the location of roads.  

21                But what we have seen is it closes 

22   roads.  Which, you know, you have to start 

23   considering the safety issues, and for people 

24   who live and have used that road to get to one 

25   location or another have to go another way.  

                                                               413

 1                But basically it takes away public 

 2   access to the Forest Preserve.

 3                SENATOR SQUADRON:   If the sponsor 

 4   would yield for another question.

 5                ACTING PRESIDENT ROBACH:   Do you 

 6   continue to yield?

 7                SENATOR LITTLE:   Yes, I'll be 

 8   glad to yield.

 9                SENATOR SQUADRON:   Thank you.

10                If this bill were to pass and a 

11   town wanted to change the location of a road 

12   within the Forest Preserve -- so, in other 

13   words, there would be a road that had 

14   previously been used and they wanted to cut a 

15   new one -- would that be in the town's 

16   purview?  Would DEC have anything to say about 

17   that if this bill passed?  

18                SENATOR LITTLE:   Well, I suppose 

19   they would have to find other land for a new 

20   road.  And hopefully they would work with the 

21   town.  

22                What we're saying here is there is 

23   no consideration of the town which has plowed 

24   and taken care of this road and it has been 

25   part of the road system within the town, in 

                                                               414

 1   some cases for over a hundred years.  And 

 2   people have used this road.  

 3                And, you know, they put it in the 

 4   unit management plan that we are now in Forest 

 5   Preserve, and Forest Preserve wilderness area 

 6   cannot have motorized vehicles.  Therefore, 

 7   they closed the road.  

 8                And as the example I gave of the 

 9   one owner on one side and the one on the other, 

10   they both got compensated for the purchase of 

11   that land.  But because the road was in the 

12   center, the state takes it.

13                SENATOR SQUADRON:   Thank you.  If 

14   the sponsor would continue to yield.

15                ACTING PRESIDENT ROBACH:   Do you 

16   continue to yield, Senator Little?  

17                SENATOR LITTLE:   Yes, I continue 

18   to yield.

19                SENATOR SQUADRON:   Thank you.  

20                And the town would have the 

21   authority, if this bill were to pass, relative 

22   to abandonment and DEC would lose all their 

23   authority?  So the town alone would have the 

24   authority without any other oversight in the 

25   forest?  

                                                               415

 1                SENATOR LITTLE:   Oh, no, the 

 2   Adirondack Park Agency has total oversight in 

 3   the park for everything that takes place within 

 4   the park, and they work with DEC.  

 5                But I think that they would have 

 6   to start considering the town and the wishes of 

 7   the town and the people of the town who elected 

 8   the town board who have objected to the closure 

 9   of this road.  And that's not being taken into 

10   consideration.

11                And the precedent is that we're 

12   only talking about the roads within the 

13   Adirondack Park.  And as I said, they're not 

14   major highways, and there are instances where 

15   they are in the middle of Forest Preserve.  I 

16   don't think many of you have Forest Preserve in 

17   your districts, so it's not going to happen.  

18   However, it has happened in two towns in my 

19   district, over the objection of the local 

20   government and the residents and the people who 

21   live in those towns.  

22                And, you know, it just seems so 

23   unfair that you don't consider the needs of the 

24   town and the home rule and work with the town 

25   board.  

                                                               416

 1                But the people that went to all 

 2   these hearings and objected -- you know, I 

 3   mean, everyone -- the Adirondack Mountain Club 

 4   opposes this legislation.  I mean, they'd like 

 5   it just to be a lot of hiking through the 

 6   park.  Well, that's wonderful for hikers and 

 7   for people who can do it.  

 8                But let's consider some of the 

 9   disabled, some people with heart conditions, 

10   some small children, people with small 

11   children.  They'd like to be able to -- at this 

12   point you could drive on this road, park at an 

13   area that's set aside, and then hike.  They 

14   want you to walk three, four, five, six, seven, 

15   10 miles in and then hike.  And not everyone 

16   can do that.

17                SENATOR SQUADRON:   Thank you very 

18   much.  

19                On the bill, Mr. President.

20                ACTING PRESIDENT ROBACH:   On the 

21   bill.

22                SENATOR SQUADRON:   I think what 

23   the case of Senator Little brings up in terms 

24   of a town's authority and wishes being 

25   completely ignored is a good one and a strong 

                                                               417

 1   one and one that I would like to be supportive 

 2   of.

 3                Unfortunately, in addition to 

 4   that, this bill gives carte blanche to any 

 5   local government on a Forest Preserve in the 

 6   Adirondack Park -- that really is one of the 

 7   jewels of this state and one of the singular 

 8   priorities of this state to protect -- and it 

 9   takes away the state's power to protect it.  

10                It's not just about abandonment of 

11   roads in the case of the Town of Wells and the 

12   other situation in the sponsor's district, it's 

13   also relocating a road, arguably cutting a new 

14   road, changing the location of the road.  And I 

15   think that's one of the major concerns here.

16                Secondarily, it doesn't just give 

17   the town a say where they don't have one today, 

18   it actually takes away the say of the state 

19   agency, of DEC, as well.  

20                And so I certainly would be 

21   supportive of a bill that was about the 

22   abandonment of roads, was about protecting the 

23   local elected officials' and local governments' 

24   role with abandonment of roads.  This bill 

25   unfortunately goes beyond that, and that's why 

                                                               418

 1   I'm not going to be able to support it.

 2                Thank you, Mr. President.

 3                ACTING PRESIDENT ROBACH:   Senator 

 4   Little.

 5                SENATOR LITTLE:   Thank you, 

 6   Mr. President.  If I could just respond, just 

 7   for a point of clarification.  

 8                When it talks about relocation, 

 9   you're not going to be able to relocate any new 

10   road in the Forest Preserve.  So there won't be 

11   any relocation of a road within the Forest 

12   Preserve.  We're talking about the absolute 

13   closure of the road, closure of accessibility 

14   to that section of the Forest Preserve.

15                ACTING PRESIDENT ROBACH:   Seeing 

16   no other Senator wishing to be heard, debate is 

17   closed.  

18                The Secretary will ring the bell.

19                Senator Libous.  

20                SENATOR LIBOUS:   Mr. President, 

21   just on the roll, so that we can move the 

22   progress along, members need to be in their 

23   seat while we're counting votes, and then they 

24   can scurry across the chamber and talk to each 

25   other.  

                                                               419

 1                But for right now, if members 

 2   could get to their assigned seats, we can call 

 3   the roll.  Senator Hannon?  

 4                ACTING PRESIDENT ROBACH:   Read 

 5   the last section.

 6                THE SECRETARY:   Section 2.  This 

 7   act shall take effect immediately.

 8                ACTING PRESIDENT ROBACH:   Call 

 9   the roll.

10                (The Secretary called the roll.)

11                ACTING PRESIDENT ROBACH:    

12   Announce the results.

13                THE SECRETARY:   In relation to 

14   Calendar Number 106, those recorded in the 

15   negative are Senators Adams, Avella, Ball, 

16   Dilan, Duane, Espaillat, Hassell-Thompson, 

17   Krueger, LaValle, Montgomery, Oppenheimer, 

18   Parker, Peralta, Perkins, Rivera, Serrano, 

19   Squadron and Stavisky.

20                Ayes, 43.  Nays, 18.

21                ACTING PRESIDENT ROBACH:   The 

22   bill is passed.  

23                Senator Libous.  

24                SENATOR LIBOUS:   Thank you, 

25   Mr. President.  

                                                               420

 1                Mr. President, at this time could 

 2   we go to Calendar Number 42, please.

 3                ACTING PRESIDENT ROBACH:   The 

 4   Secretary will read.

 5                THE SECRETARY:   Calendar Number 

 6   42, by Senator Nozzolio, Senate Print 478, an 

 7   act to amend the Executive Law.

 8                SENATOR BRESLIN:   Explanation.

 9                ACTING PRESIDENT ROBACH:   Senator 

10   Breslin has asked for an explanation, 

11   Senator Nozzolio.

12                SENATOR NOZZOLIO:   Mr. President, 

13   this measure excludes evergreen trees from the 

14   list of combustible materials and allows them 

15   to be placed in public buildings.

16                ACTING PRESIDENT ROBACH:   Senator 

17   Krueger.

18                SENATOR KRUEGER:   Thank you, 

19   Mr. President.

20                Well, last year we had a rousing 

21   debate on this bill, so I'm not going to ask 

22   Senator Nozzolio the questions again from last 

23   year, I'll just speak on the bill.

24                ACTING PRESIDENT ROBACH:   Senator 

25   Krueger on the bill.

                                                               421

 1                SENATOR KRUEGER:   Thank you.

 2                While live evergreens that have 

 3   been cut down and put in pots can be beautiful, 

 4   they are also, according to any number of 

 5   national studies involving fire safety and fire 

 6   hazards, they are ranked one of the highest 

 7   hazards for drying out and catching fire, 

 8   particularly when electronic ornaments are 

 9   placed on them, making it all the more likely 

10   that a dried-out, dying evergreen tree can 

11   cause a fire.

12                I do not believe that the 

13   Building Code or the Fire Code of New York 

14   State should be overridden to allow an 

15   increased risk of fire from allowing live 

16   evergreen trees in government buildings.

17                As we know, because of budget cuts 

18   we are finding there are fewer and fewer 

19   government staff in these buildings to handle 

20   any of the maintenance responsibilities on a 

21   daily basis.  And I would hate to support 

22   legislation that could in fact lead to a tragic 

23   fire in one of our government buildings 

24   throughout the State of New York.  

25                I'll be voting no.  Thank you, 

                                                               422

 1   Mr. President.

 2                ACTING PRESIDENT ROBACH:   Thank 

 3   you, Senator Krueger.

 4                Seeing no other Senator wishing to 

 5   be heard, the debate is closed.

 6                Senator Nozzolio.

 7                SENATOR NOZZOLIO:   To explain my 

 8   vote.

 9                ACTING PRESIDENT ROBACH:   Let's 

10   get on the roll call and we'll get right back 

11   to you.

12                Ring the bell.

13                The Secretary will read the last 

14   section.

15                THE SECRETARY:   Section 2.  This 

16   act shall take effect immediately.

17                ACTING PRESIDENT ROBACH:   Call 

18   the roll.

19                (The Secretary called the roll.)

20                ACTING PRESIDENT ROBACH:   Senator 

21   Nozzolio to explain his vote.

22                SENATOR NOZZOLIO:   Thank you, 

23   Mr. President.

24                Mr. President and my colleagues, I 

25   would like to thank all my colleagues who are 

                                                               423

 1   supporting this measure.

 2                I'd also like to refer to a news 

 3   release of November 2011 from the New York 

 4   State Department of Agriculture and Markets.  

 5   Commissioner Darrel Aubertine, along with 

 6   Office of General Services Commissioner RoAnn 

 7   Destito, welcomed this last Christmas season a 

 8   number of evergreen growers to the Capitol, 

 9   where they donated trees and breathes to 

10   decorate the Capitol and the Executive Mansion 

11   for the holiday season.  

12                It seems what's good enough for 

13   the Governor or the Commissioner of the Office 

14   of General Services and the Commissioner of 

15   Agriculture should be good for the entire 

16   government.  

17                And I thank this body for 

18   supporting the evergreen growers of this state, 

19   who grow the best Christmas trees possible, and 

20   that I think that they certainly will be glad 

21   that this body supports their efforts.

22                Thank you, Mr. President.

23                ACTING PRESIDENT ROBACH:   Thank 

24   you, Senator Nozzolio.  

25                Announce the results.

                                                               424

 1                THE SECRETARY:   In relation to 

 2   Calendar Number 42:  Ayes, 59.  Nays, 2.  

 3   Senators Adams and Krueger recorded in the 

 4   negative.

 5                ACTING PRESIDENT ROBACH:   The 

 6   bill is passed.

 7                Senator Libous.

 8                SENATOR LIBOUS:   Mr. President, I 

 9   believe's one other bill on the controversial 

10   calendar, Calendar Number 126.

11                ACTING PRESIDENT ROBACH:   The 

12   Secretary will read.

13                THE SECRETARY:   Calendar Number 

14   126, by Senator Golden, Senate Print 6087A, an 

15   act to amend the Education Law.

16                SENATOR BRESLIN:   Explanation.

17                ACTING PRESIDENT ROBACH:   An 

18   explanation has been requested.

19                Senator Flanagan.

20                SENATOR FLANAGAN:   Thank you, 

21   Mr. President.

22                Senator Breslin, this bill is an 

23   amendment to Education Law Section 414.  And 

24   that section of the law has to do with the use 

25   of schoolhouse and grounds surrounding that 

                                                               425

 1   schoolhouse.  It's not a particularly lengthy 

 2   section of law, but it is quite direct in its 

 3   application and its language.  

 4                And we are amending that section 

 5   of the law to provide some additional language 

 6   that specifically deals with a number of court 

 7   cases that have taken place over the last 16 to 

 8   18 years, all the way up, all the way back 

 9   down, all the way back up, and all the way back 

10   down.  

11                So this is codification of two 

12   Supreme Court cases in particular, generally 

13   referred to as the Good News Club and the 

14   Lamb's Chapel.  And the specific language that 

15   we're adding into the bill that I think is the 

16   part most people are paying attention to is 

17   Section 3 under sub (c) of Education Law 414.  

18   And I don't think I necessarily need to read 

19   it, but it essentially codifies those cases and 

20   amends that section of the law.

21                I think it's very important to 

22   mention a couple of other things that I believe 

23   to be very important.  I believe local school 

24   boards and school districts should have 

25   latitude and discretion.  I believe under the 

                                                               426

 1   old law and with the application of this new 

 2   statute they will continue to have that 

 3   discretion.  

 4                There are some current concerns 

 5   about what type of activities may take place 

 6   within the school.  I want to specifically 

 7   reference an existing section of the law that I 

 8   think is dispositive in many ways, and that is 

 9   Section 414, the last sentence, which speaks to 

10   what may be done by boards.  

11                And it says:  "In the grounds and 

12   other property of the district, when not in use 

13   for school purposes or when the school is in 

14   use for school purposes if, in the opinion of 

15   the trustees or board of education, that use 

16   will not be disruptive of normal school 

17   operations."  

18                So if we did nothing on the law, 

19   there's still an inherent power for school 

20   boards to have flexibility and discretion to 

21   control activities within the boundaries of the 

22   school community.

23                ACTING PRESIDENT ROBACH:   Thank 

24   you, Senator Flanagan.

25                Senator Krueger.

                                                               427

 1                SENATOR KRUEGER:   Thank you, 

 2   Mr. President.

 3                Will Senator Golden answer 

 4   questions on his bill, please.

 5                ACTING PRESIDENT ROBACH:   He 

 6   hasn't spoken yet on the bill.

 7                SENATOR KRUEGER:   But he's the 

 8   sponsor of the bill, Mr. President.

 9                ACTING PRESIDENT ROBACH:   He 

10   really doesn't need to yield because he hasn't 

11   spoken.

12                SENATOR FLANAGAN:   Mr. President, 

13   I'd be happy to answer questions on the bill.

14                ACTING PRESIDENT ROBACH:   Senator 

15   Flanagan is a co-prime.  If you'd like to 

16   direct your question to him, that would be 

17   great.

18                SENATOR KRUEGER:   Thank you, 

19   Mr. President.  

20                Can Senator Flanagan answer why 

21   Senator Golden won't speak on his bill or 

22   answer questions on his bill?  

23                ACTING PRESIDENT ROBACH:   That's 

24   not germane, Senator Krueger.  Do you have a 

25   question on the bill?  

                                                               428

 1                SENATOR KRUEGER:   I have any 

 2   number of questions, yes, thank you, 

 3   Mr. President.  

 4                But just for the record, it's a 

 5   little confusing to me that the sponsor of a 

 6   bill would neither explain his bill or agree to 

 7   answer questions on his bill, for the record.

 8                ACTING PRESIDENT ROBACH:   Senator 

 9   Krueger, I think it's very appropriate, as a 

10   co-prime sponsor of the bill and the chairman 

11   of the Education Committee -- Senator Flanagan 

12   did an excellent job of explaining the bill, 

13   and I'm sure he'll do an excellent job 

14   answering your question.

15                SENATOR KRUEGER:   Thank you, 

16   Mr. President.

17                Senator -- I guess let me 

18   rethink.  Will the cosponsor of the bill please 

19   cede to a question.

20                ACTING PRESIDENT ROBACH:   Senator 

21   Flanagan, will you yield for a question?  

22                SENATOR FLANAGAN:   Yes, I will.

23                SENATOR KRUEGER:   Thank you.

24                Is this bill intended to apply 

25   throughout the State of New York or simply to a 

                                                               429

 1   specific locale within the State of New York?  

 2                SENATOR FLANAGAN:   Statewide.

 3                SENATOR KRUEGER:   It's a 

 4   statewide bill, thank you.

 5                If the cosponsor would continue to 

 6   yield.  And we don't have co-prime sponsors, so 

 7   I gather as a cosponsor of the bill would he 

 8   continue to yield.

 9                ACTING PRESIDENT ROBACH:   Senator 

10   Flanagan, will you continue to yield?  

11                SENATOR FLANAGAN:   Yes, 

12   Mr. President.

13                SENATOR KRUEGER:   The City of 

14   New York doesn't actually have a local board of 

15   education.  So does this bill not apply to the 

16   City of New York?  

17                SENATOR FLANAGAN:   No, the bill 

18   does apply to the City of New York.

19                SENATOR KRUEGER:   Mr. President, 

20   if through you Senator Flanagan would continue 

21   to yield.

22                SENATOR FLANAGAN:   Yes, I will.

23                SENATOR KRUEGER:   So whom in the 

24   City of New York would be making the 

25   determination as described in this bill?  

                                                               430

 1                SENATOR FLANAGAN:   You know, 

 2   Senator Krueger, that's actually a very good 

 3   question.  And I would reference for you, given 

 4   how we have adopted and enacted and modified 

 5   and amended statutes, this was a question that 

 6   was raised internally.  

 7                And I can also tell you that there 

 8   are at least 20 other sections of law that I'm 

 9   looking at -- Election Law, Public Authorities, 

10   Education Law in about 15 different capacities 

11   that speaks to the New York City Department of 

12   Education, New York City School District, and 

13   makes reference to the Board of Education and 

14   community school boards even though there have 

15   been changes to the law.

16                So the applicability is clearly 

17   statewide, and it is determined by -- it also 

18   includes the City of New York.

19                SENATOR KRUEGER:   Mr. President, 

20   if the sponsor will continue to yield.

21                ACTING PRESIDENT ROBACH:   Senator 

22   Flanagan?

23                SENATOR FLANAGAN:   Yes, I will.

24                SENATOR KRUEGER:   I appreciate 

25   that answer, but it doesn't answer my 

                                                               431

 1   question.  

 2                In the City of New York, if this 

 3   bill were to become law, who would be the 

 4   entity or entities making decisions about 

 5   whether or not a specific religious 

 6   organization could use a school building for 

 7   their activities?

 8                SENATOR FLANAGAN:   I believe it 

 9   would be the New York City Department of 

10   Education.

11                SENATOR KRUEGER:   Mr. President, 

12   if through you I could ask the sponsor an 

13   additional question.

14                ACTING PRESIDENT ROBACH:   Senator 

15   Flanagan?  

16                SENATOR FLANAGAN:   Yes.

17                SENATOR KRUEGER:   So again, for 

18   the record, as you as a cosponsor read this 

19   bill it would be the City Department of 

20   Education who would have the authority to 

21   approve or disapprove any religious 

22   organizations's request to use a city school 

23   building for their religious meetings?

24                SENATOR FLANAGAN:   Yes.

25                SENATOR KRUEGER:   Thank you.  

                                                               432

 1                Through you, Mr. President, if the 

 2   cosponsor would continue to yield.

 3                SENATOR FLANAGAN:   Yes, I will.

 4                SENATOR KRUEGER:   Thank you.

 5                I believe there was a change 

 6   between the first version of this bill and the 

 7   A print of the bill wherein, while the word 

 8   "religious worship activities" was removed from 

 9   the text, it remains in the title.  And so I 

10   would like a clarification, if I could, of the 

11   definition of a religious meeting that is not 

12   involved with religious worship as intended by 

13   this bill.

14                SENATOR FLANAGAN:   I'm sorry, 

15   Senator Krueger, could you just repeat that 

16   last part?  

17                SENATOR KRUEGER:   Certainly.  

18                So the original version of the 

19   bill talked about religious worship meetings in 

20   schools, the original version of the bill.  

21   Version A amended -- removes the word "worship" 

22   and replaces it with "religious meetings."  And 

23   yet the term "religious worship meetings" 

24   remains in the title.

25                So can you explain to me what the 

                                                               433

 1   difference between the original bill and the 

 2   A print of the bill is when it comes to 

 3   worshiping or not worshiping on Sundays in 

 4   schools?

 5                SENATOR FLANAGAN:   Well, we can 

 6   get into probably some type of discussion about 

 7   what a title in a bill means.  I think the 

 8   statutory language is what would predominate if 

 9   there were ever any question of interpretation,  

10   particularly if this went to litigation.  

11                So the amended version of the bill 

12   speaks to religious meetings.  The amended 

13   version of the bill takes language from the 

14   Good News Club case and the Lamb's Chapel case 

15   frankly right out of those decisions and puts 

16   it in the bill and speaks to religious conduct 

17   and religious viewpoint.  It does not speak to 

18   "worship" in the language of the bill 

19   whatsoever.

20                SENATOR KRUEGER:   Through you, 

21   Mr. President, if the sponsor would continue to 

22   yield.

23                ACTING PRESIDENT ROBACH:   Senator 

24   Flanagan, do you continue to yield?

25                SENATOR FLANAGAN:   Yes.

                                                               434

 1                SENATOR KRUEGER:   Thank you.

 2                So there's been a number of 

 3   different law precedents cited.  The City of 

 4   New York's law precedent is the Bronx Household 

 5   case, which has recently been resolved, saying 

 6   that the Board of Education in the City of 

 7   New York, currently recognized as the 

 8   Department of Education, has the authority to 

 9   disapprove religious congregations holding 

10   meetings, worship services in schools on school 

11   grounds.  

12                And yet this bill says it it's not 

13   about worship services, it's about religious 

14   congregations holding meetings in school 

15   buildings.

16                Can you define for me the 

17   difference between a congregation having a 

18   religious meeting in a school facility on a 

19   Sunday versus a congregation having religious 

20   worship services in a school building on a 

21   Sunday?  

22                SENATOR FLANAGAN:   No, I can't.

23                SENATOR KRUEGER:   Mr. President, 

24   through you, if the sponsor could yield.

25                ACTING PRESIDENT ROBACH:   Senator 

                                                               435

 1   Flanagan, do you continue to yield?

 2                SENATOR FLANAGAN:   Yes, I will.

 3                SENATOR KRUEGER:   Does the 

 4   sponsor think they are two different things, or 

 5   are they the same thing?  

 6                SENATOR FLANAGAN:   Senator 

 7   Krueger, if I look -- and I'm sure, as a 

 8   student of the legislative process, that you 

 9   have endeavored to do your own research -- 

10   there are a number of court cases in I guess 

11   like the synthesis of this legislation.  There 

12   are Supreme Court cases, there are Appeals 

13   Court cases.  I reference with hopefully a 

14   modicum of humor that this has been all over 

15   the courts.  

16                What we tried to do was take the 

17   language from the Supreme Court cases, codify 

18   it into New York State law, make it applicable 

19   statewide.  And we specifically did not delve 

20   into the question of defining worship, just as 

21   the courts have not done so, including the 

22   Supreme Court of the United States.

23                SENATOR KRUEGER:   Mr. President, 

24   if through you the sponsor would continue to 

25   yield.

                                                               436

 1                ACTING PRESIDENT ROBACH:   Senator 

 2   Flanagan, do you continue to yield?  

 3                SENATOR FLANAGAN:   Yes, I will.

 4                SENATOR KRUEGER:   Thank you.

 5                And again, the Senator is right, 

 6   there have been any number of court cases in 

 7   any number of courts.  The Supreme Court has 

 8   ruled, under the federal Constitution, public 

 9   schools may be used for certain types of 

10   activities related to religion, including 

11   instruction and discussion of religious ideas, 

12   the singing of hymns, and even prayer.  

13                But the conduct at issue in the 

14   Bronx Household case, which is the recent case 

15   that was decided, that clearly is triggering 

16   this piece of legislation at this time, is 

17   actually quite different.  The Bronx Household 

18   case was over the use of a school for religious 

19   services as if the school were actually a 

20   church.

21                So my question again to the 

22   Senator, in the context of this bill, can he 

23   explain to me the difference between a 

24   religious service for worship in a school 

25   building on a Sunday by a congregation versus a 

                                                               437

 1   religious meeting in a school by a congregation 

 2   on a Sunday?

 3                SENATOR FLANAGAN:   Senator 

 4   Krueger, what we endeavored to do was to take 

 5   the language and the holdings of the two 

 6   Supreme Court cases that I've cited, put them 

 7   into state law.  

 8                I believe that I've made clear 

 9   through your questioning that the New York City 

10   Department of Education would be an arbiter, in 

11   your particular instance, for your local school 

12   district, but by extension by local boards of 

13   education frankly throughout the rest of the 

14   state.  So there is a certain amount of 

15   latitude and discretion for that decision to be 

16   made at the local level.  

17                None of those court cases define 

18   worship.  And I'm not so sure that you want 

19   John Flanagan or Senator Krueger defining 

20   worship for people, because -- I'll put it 

21   loosely in the category of "beauty is in the 

22   eyes of the beholder" -- how one person 

23   worships may be vastly different from another.  

24   That could include verbal conduct, that could 

25   include nonverbal conduct.  

                                                               438

 1                So I believe that there is enough 

 2   discretion for the New York City Department of 

 3   Education, and through the chancellor, to make 

 4   those decisions.  

 5                What we are saying is that if you 

 6   look at those cases, you cannot have a 

 7   limitation on free speech.  And it speaks to 

 8   religious conduct and religious viewpoint.

 9                SENATOR KRUEGER:   Through you, 

10   Mr. President, if the sponsor would continue to 

11   yield.

12                ACTING PRESIDENT ROBACH:   Senator 

13   Flanagan, do you continue to yield?  

14                SENATOR FLANAGAN:   Yes, I do.

15                ACTING PRESIDENT ROBACH:   Senator 

16   Krueger.

17                SENATOR KRUEGER:   Would the 

18   cosponsor agree with me that it is inherent on 

19   our role as legislators under the Establishment 

20   Clause of the Constitution to not give rise to 

21   a sufficient appearance of endorsement of any 

22   religion or religious activities, and that if 

23   we were to do so that would in fact violate the 

24   Establishment Clause of the Constitution?  

25                SENATOR FLANAGAN:   Well, that's a 

                                                               439

 1   lovely hypothetical, but I'm not going to 

 2   answer it because it has nothing to do with 

 3   this bill.  This bill is about free speech.  

 4                And if you want to bring in 

 5   another piece of legislation and talk about the 

 6   Establishment Clause, that's certainly your 

 7   prerogative.  But in the context of what we're 

 8   offering here, this is not about the 

 9   Establishment Clause, and that was not the crux 

10   of those court cases to begin with.  

11                SENATOR KRUEGER:   Mr. President, 

12   if through you the sponsor would continue to 

13   yield.

14                ACTING PRESIDENT ROBACH:   Senator 

15   Flanagan, do you continue to yield?  

16                SENATOR FLANAGAN:   Yes, I will.

17                SENATOR KRUEGER:   I don't agree 

18   with the cosponsor that this is exclusively in 

19   the domain of free speech, because while he 

20   refuses to answer the question what is 

21   religious worship, clearly this relates to 

22   religious activities by congregations in 

23   schools on Sunday.

24                SENATOR FLANAGAN:   Senator 

25   Krueger, if I may.  I have no problem with 

                                                               440

 1   having a colloquy and answering questions, but 

 2   please don't characterize my comments.  

 3                The problem is you didn't like my 

 4   answer.  I answered your question, you just 

 5   didn't like the answer.  So if you want to get 

 6   into that type of discussion, I'll be as 

 7   deferential as possible, but don't 

 8   mischaracterize my words.  

 9                Thank you, Mr. President.

10                ACTING PRESIDENT ROBACH:   Senator 

11   Krueger.

12                SENATOR KRUEGER:   Mr. President, 

13   for the record, the cases that Senator Flanagan 

14   cited earlier in his discussion were in fact 

15   Establishment Clause cases, not freedom of 

16   speech cases.  So I actually think that I am on 

17   point by raising the issue of the Establishment 

18   Clause of the U.S. Constitution.

19                And again, I can agree I am 

20   frustrated by his previous answer, but it's 

21   because I don't have an answer from 

22   Senator Flanagan.  I am trying to understand 

23   the difference in definition between a 

24   religious worship service in a public school by 

25   a congregation on a Sunday and a religious 

                                                               441

 1   meeting by a religious congregation in a public 

 2   school on a Sunday.

 3                So yes, I am frustrated by the 

 4   inability of the cosponsor to answer the question 

 5   what is the difference between the two.  But 

 6   nonetheless, I am perfectly happy to move on 

 7   with my questions about why I am concerned that 

 8   this clearly does pass the line of separation 

 9   of church/state and why the State of New York 

10   should not pass this legislation, even though I 

11   agree neither of us seem to be that clear on 

12   the definition of what the religious activities 

13   to take place would be.

14                The Supreme Court in 1971 

15   established --

16                ACTING PRESIDENT ROBACH:   Do you 

17   want to go on the bill, Senator Krueger?  

18                SENATOR KRUEGER:   No, I'm going 

19   to continue with a question, I'm sorry.  If 

20   through you the cosponsor would yield.

21                SENATOR FLANAGAN:   I do.

22                ACTING PRESIDENT ROBACH:   Thank 

23   you.

24                SENATOR KRUEGER:   Thank you.

25                In 1971 the Supreme Court 

                                                               442

 1   established a test for determining whether such 

 2   a violation of the Establishment Clause has 

 3   occurred:  In order to avoid becoming entangled 

 4   in religion, the conduct of government must 

 5   have a secular purpose.  

 6                If the sponsor would yield, do we 

 7   think that this bill is to ensure expansion of 

 8   free speech for a secular purpose?  

 9                ACTING PRESIDENT ROBACH:   Senator 

10   Flanagan, the question has already been asked.  

11   Would you yield and answer that, please?  

12                SENATOR FLANAGAN:   I'm sorry, can 

13   you repeat the question?  

14                SENATOR KRUEGER:   Certainly.  

15                According to the Supreme Court 

16   1971 decision for establishing whether or not 

17   there's a violation of the separation of 

18   church/state, they gave three tests.  I asked 

19   you the first test:  In order to avoid becoming 

20   entangled in religion, the conduct of 

21   government must have a secular purpose.

22                Do we think that this bill and the 

23   requirement on boards of education and 

24   departments of education to make this 

25   determination have a secular purpose?  Is this 

                                                               443

 1   bill relating to a secular purpose for 

 2   religious organizations having non-worship 

 3   meetings in our schools on Sundays?

 4                SENATOR FLANAGAN:   I believe this 

 5   bill is about protection of free speech and 

 6   equal access.

 7                SENATOR KRUEGER:   Mr. President, 

 8   if through you the sponsor would continue to 

 9   yield.

10                ACTING PRESIDENT ROBACH:   Will 

11   you continue to yield, Senator Flanagan?  

12                SENATOR FLANAGAN:   Yes, I will.

13                ACTING PRESIDENT ROBACH:   He 

14   will.

15                SENATOR KRUEGER:   So again, for 

16   the record, even though all of the cases cited 

17   in fact involve the Establishment Clause of the 

18   U.S. Constitution and the Supreme Court has 

19   determined that there are tests to be applied 

20   for separation of church/state under the 

21   Establishment Clause and that government should 

22   avoid becoming entangled in religion in the 

23   conduct of government -- and Test Number 2 was 

24   "must have a principal or primary effect that 

25   neither advances or inhibits religion."

                                                               444

 1                Does the cosponsor believe that 

 2   this bill neither advances nor inhibits 

 3   religion in a government building?

 4                SENATOR FLANAGAN:   Yes.

 5                SENATOR KRUEGER:   Thank you.

 6                And if the sponsor would continue 

 7   to yield.

 8                ACTING PRESIDENT ROBACH:   Senator 

 9   Flanagan?  

10                SENATOR FLANAGAN:   Yes, I will.

11                SENATOR KRUEGER:   And the third 

12   test of the Supreme Court in defining 

13   separation of church and state, or the role of 

14   religious institutions within government, is to 

15   not foster an excessive entanglement with 

16   religion.

17                Given the fact that we can't even 

18   agree on what a religious meeting versus a 

19   religious worship service in a government 

20   building on a Sunday by a congregation is, does 

21   the cosponsor actually believe that this is not 

22   fostering an excessive entanglement in the 

23   definitions and functions of religion?

24                SENATOR FLANAGAN:   I'm sorry, 

25   Senator Krueger, repeat the last part of the 

                                                               445

 1   question.  

 2                SENATOR KRUEGER:   The third test 

 3   assigned to us by the Supreme Court is that the 

 4   activities by government vis-a-vis religion 

 5   must not foster an excessive entanglement with 

 6   religion.  

 7                Do you see the Senate passing this 

 8   bill giving authorization for congregations to 

 9   hold religious non-worship services in 

10   government buildings on Sundays as to not have 

11   anything to do with fostering an excessive 

12   entanglement in religion by the government?  

13                SENATOR FLANAGAN:   I don't think 

14   this has anything to do with an excessive 

15   entanglement with government and religion.  

16   It's very clear.  

17                And I have great respect for the 

18   Constitution.  And I have no idea what case 

19   you're citing if that's from 1971.  I know the 

20   cases I'm looking at are 30 years beyond that.  

21   So it would be interesting to know what the 

22   name of that case is, because it might be 

23   referenced in some of the cases that I'm 

24   talking about.  

25                But I do know this.  The Good News 

                                                               446

 1   Club case did not define worship.  I know the 

 2   Lamb's Chapel case did not define worship 

 3   either.  I know that the Second Circuit Court 

 4   of Appeals and all the other related cases have 

 5   not defined worship either.  

 6                And I know there are 24 sponsors 

 7   of this bill from the City of New York.  And I 

 8   say this with a measure of sincerity and 

 9   respect, it would probably be very difficult to 

10   get unanimity amongst those 24 members as to 

11   what "worship" means.  

12                But do I think that promotes 

13   excessive entanglement of religion with 

14   government?  Absolutely not.  Because to answer 

15   that question in any other way would presuppose 

16   that I am actively and my colleagues are 

17   actively looking to violate the Constitution.  

18   Nothing could be further from the truth.

19                SENATOR KRUEGER:   On the bill, 

20   Mr. President.

21                ACTING PRESIDENT ROBACH:   On the 

22   bill, Senator Krueger.

23                SENATOR KRUEGER:   I am sorry that 

24   the sponsor of the bill, Senator Golden, 

25   refused to participate in this discussion today 

                                                               447

 1   or to answer questions on his own bill --

 2                ACTING PRESIDENT ROBACH:   Senator 

 3   Krueger, I don't mean to interrupt you.  But 

 4   you know what -- I was going to wait till the 

 5   end, but since you keep citing this, for 

 6   clarity for all our Senators --

 7                SENATOR KRUEGER:   Yes, please.

 8                ACTING PRESIDENT ROBACH:   -- let 

 9   me just read to you, because we have very good 

10   dialogue here and follow the rules.  

11                In Rule Number 9 of the Senate, 

12   Section 4, subchapter (b), in the middle of the 

13   paragraph, it's in the rules he couldn't answer 

14   the question if he wanted to:  "Furthermore, it 

15   shall not be an order for a Senator with the 

16   right to the floor to ask another Senator to 

17   yield for a question unless such Senator has 

18   previously spoken during debate on the matter."

19                So in all fairness, following the 

20   rules, it's really not relevant, germane or 

21   has anything to do with this.

22                So now that we've clarified that, 

23   I hope you'll stick to the bill.  Thank you.

24                SENATOR KRUEGER:   I appreciate 

25   the clarification of the rule and the fact that 

                                                               448

 1   the Senator who was the sponsor of the bill, 

 2   Senator Golden, has the right not to answer 

 3   questions on his bill.  

 4                It doesn't change the fact that 

 5   I'm disappointed that he didn't choose to 

 6   participate in defending his own bill.  So I 

 7   don't believe I am nongermane to the point.

 8                ACTING PRESIDENT ROBACH:   Well, 

 9   in regard to yielding, it would be totally 

10   germane and against our rules, if it matters to 

11   you.

12                SENATOR KRUEGER:   Thank you.  And 

13   yet I'm now on the bill rather than asking any 

14   more questions about the bill.

15                This is clearly a bill that walks 

16   a very fine line and in my opinion crosses over 

17   the line of the separation of church/state.

18                I agree it is very difficult to 

19   define what is religious worship, which I think 

20   we all would agree is not allowed to take place 

21   in a public school, hence the change of 

22   language in the A print of the bill to a 

23   religious meeting of a congregation of the same 

24   people in the same place at the same time of 

25   each week wherein they usually traditionally 

                                                               449

 1   have religious worship meetings.

 2                It is an extraordinarily dangerous 

 3   thing for government to move down the road of 

 4   recognizing any kind of established church or 

 5   religious activity in our public institutions.  

 6   It is perhaps most disturbing to cross that 

 7   line when it comes to schools where children 

 8   come and go, sometimes on weekends as well, 

 9   have an expectation and their parents have an 

10   expectation that this is a public school 

11   intended to provide constitutional public 

12   education and other activities, but that these 

13   are not religious institutions.

14                And in fact, in the New York City 

15   case, an additional issue that was raised was 

16   the fact that because of the scheduling of 

17   school-related activities that really only 

18   certain types of religions were even allowed to 

19   take advantage of the ability to participate in 

20   their worship services in school buildings, and 

21   that is because only certain religions have 

22   their worship services on Sundays.  Which 

23   again, for New York City, is basically the only 

24   day of the week when school buildings have some 

25   amount of free space available for other 

                                                               450

 1   community activities.  

 2                So it's both a discrimination 

 3   against those who practice religions that don't 

 4   have their worship or non-worship services by 

 5   their congregations on a Sunday, but it also 

 6   clearly, in this legislation, intends to allow 

 7   the continuation of worship services in public 

 8   schools that the courts have ruled, in the 

 9   Bronx Household case -- excuse me, I'm saying 

10   Bronx Household, but that's not the name of the 

11   case.  One second.  In the, excuse me, what is 

12   named the Bronx Household of Faith.  Excuse 

13   me.  It was Bronx Household, but Bronx 

14   Household of Faith case -- where it was clearly 

15   determined that the City of New York Department 

16   of Education had the authority to not allow 

17   religious congregations to have their religious 

18   worship meetings by congregations in their 

19   school buildings.

20                The reason for this bill is to 

21   override or attempt to override this court 

22   decision that took 16 years ago to decide.  The 

23   Supreme Court has chosen not to review this 

24   case, I believe on the grounds that the Supreme 

25   Court has in fact decided any number of cases 

                                                               451

 1   that have made clear the importance of the 

 2   separation of church/state and does not allow 

 3   religious organizations to provide for their 

 4   religious worship activities in public schools.

 5                I know that there are I believe 

 6   the Senator said 24 members of this house who 

 7   have become cosponsors.  I am hoping people 

 8   will read the materials carefully and think 

 9   about this.  

10                In my own city last week there 

11   were more City Council members who initially 

12   decided to cosponsor a resolution, a nonbinding 

13   resolution on this piece of legislation, and 

14   after debate and review and discussion many of 

15   them realized sometimes things are not as 

16   simple as they seem and that this would be a 

17   mistake for the City of New York to move 

18   forward in supporting this legislation, be it 

19   the Mayor's office or the City Council.

20                So there is a great deal to debate 

21   about the State of New York taking a 

22   significant leap forward in its historical 

23   positions that there is no government- 

24   recognized religion, that government should not 

25   become entangled in the activities of the 

                                                               452

 1   religion, that there shall never be any 

 2   confusion about whether the government endorses 

 3   or supports any specific religion or even 

 4   religion, and that that is the fundamental 

 5   reason why we should not pass this legislation 

 6   and we should not leave to some degree to the 

 7   discretion of individual boards of education to 

 8   make these tough decisions.

 9                Because in fact here on the floor 

10   of the Senate today I can't define a worship 

11   service versus a religious meeting.  My 

12   colleague Senator Flanagan said he can't define 

13   that.  The Supreme Court has made a best effort 

14   to define when government is overstepping and 

15   crossing into that territory.  

16                But to put into the law at the 

17   state level the situation where individual 

18   school boards throughout the State of New York 

19   might find themselves in litigation over the 

20   definition of what is religion, what is a 

21   worship service, whom is a congregation, and 

22   whether or not they can say no, is to some 

23   degree in my opinion not only the wrong 

24   decision by this house, but it's punting 

25   answers we can't answer for ourselves to a 

                                                               453

 1   local, most often volunteer level.

 2                So in fact there are people who 

 3   are supporting this bill.  There are also 

 4   organizations that represent school boards all 

 5   over the state that are opposed to this bill.  

 6   And I think because they recognized that the 

 7   passage of this law -- in addition to all the 

 8   other complications of what is state-recognized 

 9   religion, what is worship in a school versus 

10   not worship by a congregation on a Sunday, that 

11   they are extremely concerned that this not land 

12   in their laps.  

13                And I agree with them, it 

14   shouldn't land in their laps.  We should be the 

15   ones who make the tough decisions about when is 

16   the Constitution of the United States being 

17   violated, what is the separation of 

18   church/state, what is the meaning of worship, 

19   does that violate our separation of 

20   church/state if people are participating in 

21   activities in our public schools for religious 

22   purposes but there's no definition of what it 

23   is so how will these local school boards even 

24   confront this question.  

25                There are excellent memos in 

                                                               454

 1   opposition that raise many, many issues and 

 2   cite many court cases that have gone through 

 3   our U.S. courts and our state courts over the 

 4   last 50 years.  I would urge this house not to 

 5   leap before it looks.  Don't jump into a 

 6   situation where you are voting for a bill that, 

 7   in fairness, you may have trouble 

 8   understanding.  I think the two of us so far 

 9   who have debated are having some trouble 

10   understanding what the meaning of the bill is.  

11                So I would urge my colleagues to 

12   vote no on this bill today.

13                Thank you, Mr. President.

14                ACTING PRESIDENT ROBACH:   Thank 

15   you, Senator.

16                Senator Malcolm Smith.

17                SENATOR SMITH:   Thank you very 

18   much, Mr. President.  On the bill.

19                ACTING PRESIDENT ROBACH:   On the 

20   bill.

21                SENATOR SMITH:   Mr. President and 

22   colleagues, I appreciate the sensitivity of 

23   this issue.  I appreciate the dialogue between 

24   Senator Flanagan and Senator Liz Krueger.  

25   Obviously this debate goes back as far as 1802 

                                                               455

 1   when Thomas Jefferson wrote that letter to the 

 2   Danbury Baptist Church Association on the 

 3   separation between church and state.

 4                Perhaps we have come to a point 

 5   where we may have to revisit what we now have 

 6   described as that separation between church and 

 7   state.  And anecdotal as it may seem, think 

 8   about small things, such as when you look at 

 9   your dollar bill, it says "In God We Trust."  

10   When you take an oath, you raise your hand and 

11   say "so help me God."  When you get sworn in on 

12   this floor, you put your hand on the Bible.

13                So this may be a time where we may 

14   have to revisit, as we are revisiting the way 

15   we redefine the relationship between government 

16   and community today that our Governor has so 

17   aptly put to our attention.

18                But the fact of the matter, 

19   Mr. President, is I think sometimes we get a 

20   little bit too caught up in what was debated 

21   here on the floor.  The fact of the matter is 

22   these are real lives that these institutions 

23   are saving and helping.  

24                We are in very challenging times, 

25   Mr. President.  And it is these institutions 

                                                               456

 1   that your constituents go to on that weekend 

 2   that need sometimes that little mental help, 

 3   that needs that little support because they had 

 4   a challenging week when they may have lost 

 5   their that job or someone in their family may 

 6   have lost their job.  They need some type of 

 7   support.  I daresay all of you have gone to 

 8   your religious institutions somewhere at some 

 9   point and walked out of there feeling mentally 

10   stronger because of what was imparted to you by 

11   that particular reverend or pastor who had a 

12   sermon or whatever that day.

13                All they're saying is, Give us the 

14   opportunity to help.  They are helping those 

15   individuals that we can't help anymore.  We 

16   don't have member items.  We barely get 

17   capital.  And so all these organizations are 

18   trying to help those people that we can't give 

19   something to look forward to.  They're not 

20   asking you to abject to your faith or belief.  

21   You can still practice your religion.  You can 

22   still have your belief and all that you were 

23   grown on.  

24                But think about the lives of the 

25   individuals that these people are impacting.  

                                                               457

 1   That is all they are saying.  Senator Flanagan, 

 2   Senator Golden, it's not about either one of 

 3   them.  It's about those 1200 churches that are 

 4   meeting and trying to help people move through 

 5   the challenging parts of their life.

 6                Colleagues, we're going to very 

 7   shortly celebrate Valentine's Day.  So have a 

 8   heart.

 9                (Laughter.)

10                SENATOR SMITH:   Let them go ahead 

11   and do what they're trying to do to save other 

12   people's lives.  It's not hurting you.  All 

13   they're saying is let us do our job, just like 

14   we do.  

15                Mr. President, I'll be voting aye 

16   for the bill.

17                ACTING PRESIDENT ROBACH:   Thank 

18   you, Senator Smith.  

19                Senator Diaz.

20                SENATOR DIAZ:   Thank you, 

21   Mr. President.

22                Honestly, Senator Malcolm Smith 

23   almost made me cry.  

24                Today I'm glad and I am happy that 

25   that side, the Republican members of the Senate 

                                                               458

 1   who control -- I'm sorry, I should have said on 

 2   the bill.  I didn't say on the bill.  

 3                The Republican members that 

 4   control this Senate have taken the cry of 

 5   churches in the City of New York that happens 

 6   to be mainly concentrated in the Democratic 

 7   areas and that most of their members are 

 8   Democrats.  It is commendable that the 

 9   Republican Party and Senator Golden, especially 

10   Senator Golden, took this issue and in three 

11   weeks of session, in less than three weeks of 

12   session, this body already has taken this bill 

13   to the committee, passed it in the committee, 

14   and today have brought this bill to the Senate 

15   floor.  Amazing.

16                The City of New York, the City 

17   Council is controlled by Democrats, and they 

18   still are playing with it.  And not even a 

19   lousy resolution can they approve to help these 

20   churches that are located in Democratic areas.

21                The other chamber, controlled by 

22   Democrats, they are playing games too.  Thank 

23   you, Senator Golden.  Thank you, Senator.  

24   Thank you to all my colleagues here, to my 

25   Democratic colleagues that will be supporting 

                                                               459

 1   this bill today.  This shows something, 

 2   especially to the ministers in the City of 

 3   New York, sometimes you have to know who your 

 4   friends are when you are in need.  And today 

 5   you are showing here something.  

 6                I don't know if this is going to 

 7   be a one-house bill.  It might be a one-house 

 8   bill, according to what I see.  Nonetheless, 

 9   nonetheless, what's happening here today is an 

10   indication of people that are concerned with 

11   the suffering.  Because this is not only one 

12   religion, this is -- any religion could rent 

13   it.  

14                And by the way, Mr. President, 

15   Mr. President, it's also proper to find out if 

16   the City of New York Department of Education 

17   rents or leases spaces from religious 

18   organizations to teach children.  According to 

19   my knowledge, the City of New York Department 

20   of Education rents and leases spaces from 

21   churches, from New York organizations, to send 

22   the children there to teach them.  So you 

23   English-speaking people have a saying that says 

24   whatever is good for the goose, it should be 

25   good for the gander too.  

                                                               460

 1                And I don't see why a congregation 

 2   can't rent an auditorium on Sunday and on 

 3   Saturday when the churches are not being used, 

 4   rent and pay whatever the Department of 

 5   Education charges, and rent that space, that 

 6   auditorium, and use it.  There's no children 

 7   there, there's no school there, nothing is 

 8   happening there.  They are paying the rent, 

 9   they're paying for security, they're paying for 

10   cleaning.  The City of New York needs the 

11   money.  

12                Also, the New York City Housing 

13   Authority that was having the same problem, 

14   immediately they solved the problem and said, 

15   you are allowed to do it.  So one department of 

16   the city says it's okay, and the other 

17   department of the city says it's not okay.  

18                So thank you again, Senator 

19   Golden, and members of that chamber for moving 

20   so fast in this issue.  We are sure that the 

21   members of the clergy in the City of New York, 

22   at least the ones that I could get in contact 

23   with, will know that you have done a great job, 

24   a job that should be commendable.  

25                And to all my Democratic 

                                                               461

 1   colleagues that will be voting for this today, 

 2   thank you.  We appreciate that.  I'm a pastor, 

 3   I'm a minister.  I don't need to rent a school 

 4   auditorium because the congregation that I 

 5   pastor has its own building, so we don't have 

 6   that problem.  But there are people and other 

 7   not only churches, again, religious 

 8   organizations.  Whatever it is, whatever faith 

 9   they believe in, they could do this.  

10                Thank you, Mr. Chairman.  Thank 

11   you for this opportunity.  And I'll be voting 

12   yes.  

13                ACTING PRESIDENT ROBACH:   Thank 

14   you, Senator Diaz.

15                Seeing no other Senator wishing to 

16   be heard, the debate is closed.  The Secretary 

17   will ring the bell.

18                Read the last section.

19                THE SECRETARY:   Section 2.  This 

20   act shall take effect immediately.

21                ACTING PRESIDENT ROBACH:   Call 

22   the roll.

23                (The Secretary called the roll.)

24                ACTING PRESIDENT ROBACH:   Senator 

25   DeFrancisco to explain his vote.

                                                               462

 1                SENATOR DeFRANCISCO:   Yes, I just 

 2   wanted to clarify a couple of points, legal 

 3   points that were raised.

 4                The comment was made repeatedly to 

 5   Senator Flanagan that this was an Establishment 

 6   Clause of the Constitution case.  Well, what 

 7   this law does is basically codify a procedure 

 8   that was found to be constitutional by the 

 9   United States Supreme Court.

10                One of the cases that's been 

11   referred to was the Lamb's Chapel case, and the 

12   question, as stated by the court:  Did the 

13   district violate the First Amendment freedom of 

14   speech when it denied Lamb's Chapel the use of 

15   school premises to show religious-oriented 

16   films?  It didn't say anything about -- it 

17   really had nothing to do with the establishment 

18   of religion.

19                The other case, the Good News Club 

20   case, the question was did the Milford Center 

21   School violate the First Amendment free speech 

22   rights of the Good News Club when it excluded 

23   the club from meeting after hours at the 

24   school.  If a violation of the First Amendment 

25   occurred, was it justified by Milford's concern 

                                                               463

 1   that permitting the club's activities would 

 2   violate the Establishment Clause?  They never 

 3   got to that second issue because they found 

 4   that it would have been a violation of the 

 5   First Amendment rights.

 6                So this is a First Amendment 

 7   case.  The bill complies with the rulings of 

 8   the United States Supreme Court.  And we're on 

 9   good solid grounds.

10                And also about discriminating 

11   against different religions.  The rule of the 

12   school districts are simple, you can't disrupt 

13   school activities.  And whether it's one church 

14   or another church, it doesn't matter what 

15   church that is.  You can gain access to the 

16   school, if this bill becomes law, if you don't 

17   disrupt school activities.  It's blind in 

18   relation to what religions we're talking about.

19                So the bill is constitutional.  

20   The bill is a good bill.  And I vote aye.

21                ACTING PRESIDENT ROBACH:   Thank 

22   you, Senator DeFrancisco.  You'll be recorded 

23   in the affirmative.

24                Senator Montgomery.

25                SENATOR MONTGOMERY:   Yes, thank 

                                                               464

 1   you, Mr. President.  To explain my vote.  

 2                So that there is no question, I 

 3   certainly consider myself a Christian and I'm 

 4   very, very much guided by my spiritual and my 

 5   religious teaching, both personally as well as 

 6   in my work.  So there's no question there.  

 7                But I do think that this is a 

 8   slippery slope.  And let's be very clear, we're 

 9   not talking free speech here.  I want to read a 

10   couple of sentences from one of the memos that 

11   I have.  It says:  "The Bronx Household case 

12   developed as a result of an effort by an 

13   evangelical church to use a public school 

14   building on Sunday for the purpose of 

15   conducting religious worship services."

16                That's what the case was about.  

17   And that's what we argue today, that we want to 

18   give them an opportunity to continue to use the 

19   schools for their worship services.

20                I got your two-minute signal 

21   there.

22                I also want -- another sentence 

23   from this same memo, it says:  "Pastor Jack 

24   Roberts, who was a named party in the Bronx 

25   Household case, has stated the goal quite 

                                                               465

 1   clearly of the movement in this country.  It 

 2   says, May there be a church in every school in 

 3   New York City and grow to a large size for the 

 4   glory of God."  That's what this is all about.

 5                Mr. Chairman, for that reason, I 

 6   want to make sure that we continue to maintain 

 7   a strong foundation in this country, based on 

 8   our Constitution, that we separate the secular 

 9   from the religious.  I vote no.

10                ACTING PRESIDENT ROBACH:   Senator 

11   Montgomery will be recorded in the negative.

12                Senator Stavisky.

13                SENATOR STAVISKY:   Thank you, 

14   Mr. Chairman.  To also explain my vote.

15                I'm troubled by this legislation 

16   because I recognize the need for churches to 

17   have a place to meet.  It's probably a function 

18   of the real estate market and the high price of 

19   the real estate market in New York City that 

20   has caused this problem.

21                And the schools are a very 

22   convenient place to meet.  In fact, I have here 

23   a description of the costs that every group -- 

24   not just the churches, but every group pays.  

25   Do you know who it costs to rent the athletic 

                                                               466

 1   field or the auditorium?  Any of those 

 2   facilities, it's $12 an hour.  That's hardly 

 3   market rate.  Hardly market rate.

 4                My major problem is with the First 

 5   Amendment and the Establishment Clause, and 

 6   that's been discussed at great length.  

 7                I know that the Department of 

 8   Education permits religious meetings, they 

 9   permit free expression of thought, they permit 

10   all sorts of meetings.  But there is a 

11   distinction, in my mind, between a religious 

12   worship service and a meeting.  And I have a 

13   problem there.  

14                The fact, as I said, that they're 

15   not paying market value, and nobody is.  

16   Perhaps the New York City Department of 

17   Education may want to revisit that issue, 

18   although it seems to me we ought to be having 

19   the schools available for -- at this low price 

20   for groups that obviously can't afford fair 

21   market value.

22                So there is no profit to the 

23   Department of Education, and in fact I suspect 

24   they are subsidizing it.  These groups do 

25   provide the pass-through, so-called 

                                                               467

 1   pass-through expenses, whether it be the 

 2   custodial fee, the insurance costs.  The 

 3   security, the insurance, all of these issues 

 4   are paid by each group representing the costs 

 5   that are passed through.

 6                So we have to distinguish between 

 7   a worship service, which under the 

 8   Establishment Clause of the United States 

 9   Constitution, the First Amendment, I'm not sure 

10   this meets that test.  And for that reason, 

11   Mr. President, I vote no.

12                ACTING PRESIDENT ROBACH:   Thank 

13   you, Senator Stavisky.  You will be recorded in 

14   the negative.

15                Are there any other Senators 

16   wishing to explain their vote?  

17                Senator Golden.

18                SENATOR GOLDEN:   Thank you, 

19   Mr. President.  

20                I rise and thank the good chair of 

21   Education, John Flanagan, for his debate, and 

22   John DeFrancisco, Senator John DeFrancisco, on 

23   his explanation of our Constitution.

24                This amendment, Section 414 of the 

25   Education Law, is to provide the school 

                                                               468

 1   district shall not adopt or interpret 

 2   resolutions or policies for the use of 

 3   schoolhouses, grounds, or other properties of 

 4   the school district that would result in 

 5   exclusion or limitations of the free exercise 

 6   of religion, speech, during non-school hours, 

 7   even when students may be present.

 8                This is about equal access.  I 

 9   hear about $12.50 and, you know, a $12 an 

10   hour.  You know, we have thousands of groups 

11   that use our schools, all different groups -- 

12   for ESL, for education.  And yes, this would 

13   allow for religious services.  And these 

14   religious churches, given over $1 million a 

15   year just to 60 churches that we're talking 

16   about.

17                I've listened to about 

18   discrimination.  There's 300 empty schools, 

19   400 empty schools on Saturdays in the City of 

20   New York.  After school there are hundreds of 

21   schools empty, not being utilized, that could 

22   be utilized at any time.

23                The Supreme Court did not rule on 

24   worship, but some here in this body feel we 

25   should.  Well, we shouldn't.  And we should 

                                                               469

 1   have equal access for all.  

 2                When these schools -- and this 

 3   lawsuit is 18 years old.  These churches have 

 4   been in these schools for tens of years, since 

 5   the 1980s, when our communities were burning 

 6   down.  When we seen the unfortunate reality of 

 7   people being -- 2100 people killed in the 

 8   streets of the City of New York, we begged for 

 9   these churches to come in to help to stabilize 

10   our communities.  And now we want to put them 

11   out.

12                Ladies and gentlemen, we need to 

13   give them equal access, more churches in our 

14   schools.  Give them the free speech that 

15   they're inclined and should have.  

16                And I vote yes.  Thank you.

17                ACTING PRESIDENT ROBACH:    

18   Announce the results.

19                THE SECRETARY:   In relation to 

20   Calendar 126, those recorded in the negative 

21   are Senators Duane, Krueger, Montgomery, 

22   Oppenheimer, Perkins, Squadron, and Stavisky.

23                Ayes, 54.  Nays, 7.

24                ACTING PRESIDENT ROBACH:   The 

25   bill is passed.

                                                               470

 1                Senator Libous.

 2                SENATOR LIBOUS:   Before everybody 

 3   runs out of the chamber, we have several very 

 4   important announcements.

 5                Is there any further business at 

 6   the desk at this time?  

 7                ACTING PRESIDENT ROBACH:   There 

 8   is none, Senator Libous.

 9                SENATOR LIBOUS:   Mr. President, 

10   today we have a birthday of one of our 

11   colleagues.  Let's wish Colonel Bill Larkin a 

12   very, very happy birthday.  Senator Larkin.

13                (Applause.)  

14                SENATOR LIBOUS:   Mr. President, 

15   could you please call on Senator 

16   Hassell-Thompson at this time, please.

17                ACTING PRESIDENT ROBACH:   Senator 

18   Hassell-Thompson.

19                SENATOR HASSELL-THOMPSON:   Thank 

20   you, Mr. President.  

21                There will be an immediate meeting 

22   of the Democratic Conference in Room 315.

23                ACTING PRESIDENT ROBACH:   Senator 

24   Libous. 

25                SENATOR LIBOUS:   Mr. President, I 

                                                               471

 1   just want to make note that when we adjourned 

 2   last week, I said that we would reconvene 

 3   today, the day after the Giants would win the 

 4   Super Bowl.  And they did.  And I just want 

 5   everybody to know that.  

 6                But we will not convene until 

 7   tomorrow; we will stand adjourned until 

 8   Tuesday, February 7th, at 11:00 a.m.

 9                ACTING PRESIDENT ROBACH:   There 

10   will be an immediate Democratic conference in 

11   Room 315.  

12                And on motion, the Senate stands 

13   adjourned until Tuesday, February 7th, at 

14   11:00 a.m.

15                (Whereupon, at 4:42 p.m., the 

16   Senate adjourned.)

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