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The New York City Law Department intends to take the Manhattan Supreme Court decision ordering the city to permit same-sex marriages straight to the Court of Appeals, the city’s chief attorney announced Monday. “[W]e plan to seek permission to appeal directly to the Court of Appeals so that a decision on this important issue can be reached as quickly as possible,” Corporation Counsel Michael A. Cardozo said in a written statement. “Since courts of this state disagree whether or not the state marriage law is unconstitutional, it is essential that this issue of statewide importance be decided definitively by the state’s highest court, so that the law can be uniformly applied throughout our state,” he added, citing three recent state Supreme Court decisions that dismissed similar suits. The city can bypass the Appellate Division and take the case directly to the Court of Appeals under a narrow exception to New York’s Civil Practice Law and Rules. Under CPLR 5601(b)(2), an appeal may be taken straight from a trial court to the state’s highest court if the decision’s only issues involve the validity of a state or federal statute under the state or federal constitutions. Of the 130 civil appeals the court heard in 2003, the most recent year for which it has released statistics, only eight of the cases reached the court on this basis. Although the Court of Appeals is statutorily required to hear such cases, it may decline to do so on jurisdictional grounds. The court may find that the matter turns not on constitutional grounds, but rather on, for example, issues of statutory interpretation. In Hernandez v. Robles, 103434/2004, Justice Doris Ling-Cohan last week held the state’s marriage law unconstitutional, finding it violated the due process and equal protection clauses. Indeed, the decision specifically dismissed the argument that the statute could be interpreted in a manner that would require the city clerk to issue marriage licenses to same-sex couples. If the Court of Appeals takes the case directly, its ruling could be handed down within a month or two. “Virtually every [Court of Appeals] case is decided within a month,” said Brooklyn Law School Professor William E. Hellerstein, an expert in constitutional litigation. “They’re very, very efficient.” If the court reverses Hernandez, New York would return to the status quo. If the court upholds the decision, the state would become the second, after Massachusetts, to authorize same-sex marriages. Even if the Court of Appeals initially declines to hear the case, the issue should be resolved by summer, a number of appellate attorneys said. The case would head to the Appellate Division, 1st Department. Although the composition and schedule of the particular panel assigned to the case would affect the timetable, the Appellate Division at the earliest could be expected to hand down its answer within two months, appellate attorneys said. Either way, the attorneys for the plaintiffs hope the city acts quickly, said Susan Sommer, senior counsel for Lambda Legal, who, along with Kramer, Levin, Naftalis & Frankel, represents the five couples in the suit. Though Sommer initially had stated that she hoped the city moved slowly so couples could act on the decision, now that the city has announced its intentions she wants it to speed things up, she said. “I’m in a hurry for people around the state who really should not have to wait to bring [security to] their families,” she said. As of Monday afternoon, Ling-Cohan had yet to file the decision. The city plans to file its appeal with the Court of Appeals well within the 30-day stay Ling-Cohan placed on her injunction, according to Cardozo, thereby postponing the possibility of gay marriages in New York at least until the Court of Appeals, or the Appellate Division, rules.

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