A group of Republican state legislators, including Assemblyman Andrew Goodell, R-Jamestown, are continuing their court battle to overturn a state pay commission’s decision to limit legislators’ outside incomes.

The 11 lawmakers filed their court challenge in March in William Barclay et al v. New York State Committee on Legislative and Executive Compensation et al. Motions and cross-motions have been filed in state Supreme Court in Albany throughout the summer. Oral arguments were held Friday.

Earlier this year, Judge Christine Ryba ruled in state Supreme Court in Albany in Delgado v. New York that only the first of three years of legislative pay raises could be implemented as well as striking down limits on outside income because the pay commission had overstepped its bounds. A notice of appeal has been filed.

While seeking a similar outcome, the republican legislators are seeking a declaration specifically on outside income. The Delgado case specifically challenged the creation of the pay commission before the judge arrived at the decision on outside income. Vacco told the Albany Times Union on Friday that a summary judgement in the Barclay case would put it on track to be joined with the Delgado case on appeal. The Republican legislators have said that if the restriction on outcome income is still in place in January, members of the legislature would be faced with the choice of giving up their private work or resigning from office in the middle of the term.

“We’re not that far behind (the other case). I could envision the Third Department saying, ‘We’re going to consolidate these,'” Vacco told the Times-Union. “We want to be able to write a brief; we want to be able to make an oral argument.”

State officials in the Barclay case have argued that Judge Richard Platkin of state Supreme Court in Albany should issue a stay in the Barclay case until the Delgado case is resolved by the Third Department Appellate Division Court of Appeals. The Republican lawmakers oppose the state’s stance, arguing that an appellate division is far from imminent and that the lawmakers should not be forced to wait for the state Supreme Court to make its decision. Dennis Vacco, former state attorney general and the lawyer for the Republican legislators, wrote in his memorandum of law that there are no questions of fact presented by the legislators’ case, particularly in light of the Delgado decision, so summary judgement in the legislators’ favor is warranted.

“Here, the committee prohibited a legislator from maintaining certain outside employment and limits outside income based upon its own assessment of what public policy ought to be without legislative guidance on the issue,” Vacco wrote. “…Those policy considerations are reserved for the legislature.”

Helen Lynch, an attorney with the attorney general’s office, wrote in a memorandum of law filed last week that the state wants the Barclay case to be held until the Delgado appeal to best serve “the interests of judicial economy, orderly proceedings and uniformity.” The state said there are jurisdictional issues that Platkin has to rule on before a decision in the Barclay case can be made, so the lawmakers’ request for summary judgement should not be granted.

“As respondents stated in their opening memorandum of law on this motion, those jurisdictional defenses could become academic depending upon the Third Department’s ruling,” Lynch wrote. “However, this does not mean that petitioners are entitled to sidestep those jurisdictional questions. Petitioners are in effect seeking to benefit from the application of collateral estoppel without satisfying its essential criteria. The questions of whether a judgement may be enforceable against a committee member and whether the committee made any final determination for purposes of an Article 78 proceeding were not ‘actually and necessarily decided’ in Delgado, and respondents did not have a ‘full and fair opportunity to litigate those issues’ in Delgado.”