Opinion
Index No. E2023002165
04-14-2023
Kenneth MACDONALD, Plaintiff, v. COUNTY OF MONROE, Monroe County Legislature, and Monroe County Board of Elections, Defendants.
Matthew R. Lembke, Esq., CERULLI, MASSARE & LEMBKE, attorney for Plaintiff John P. Bringewatt, Esq., Monroe County Attorney, Brendon S. Fleming, Esq., and Maria E. Rodi, Esq., of counsel, attorneys for Defendants
Matthew R. Lembke, Esq., CERULLI, MASSARE & LEMBKE, attorney for Plaintiff
John P. Bringewatt, Esq., Monroe County Attorney, Brendon S. Fleming, Esq., and Maria E. Rodi, Esq., of counsel, attorneys for Defendants
Daniel J. Doyle, J. Kenneth MacDonald (hereinafter "plaintiff") initiated this action on March 3, 2023 seeking to invalidate the legislative district map (hereinafter "the map") recently drawn and adopted by the Monroe County Legislature on December 29, 2022. Plaintiff alleges that the map contains legislative districts favoring incumbents, denies the voting rights of black votes, and contains districts that are not as compact as practicable, in violation of the anti-gerrymandering provisions contained in Municipal Home Rule Law § 34(4).
Local Law No. 3 of 2023 (NYSCEF Docket # 11).
The local law adopting the legislative maps was signed by Monroe County Executive Adam Bello on January 5, 2023 and was subject to a permissive referendum as required by Municipal Home Rule Law § 24(1)(a) and 2(j). No petition seeking a permissive referendum was filed, and the law became effective February 19, 2023.
On March 17, 2023 plaintiff sought an Order to Show Cause with an application for a temporary restraining order and preliminary injunction seeking an order (1) temporarily restraining and enjoining the County of Monroe, Monroe County Legislature, and the Monroe County Board of Elections (hereinafter "defendants") from conducting elections and all activities related to these elections, including but not limited to accepting designating petitions, holding primary elections, and any other such activities under the legislative district map; (2) restraining and enjoining defendants from conducting elections for Monroe County Legislature under the maps pending final judgment in this action; and (3) suspending and enjoining the operation of any state or local laws that would undermine this Court's ability to provide effective and complete relief to plaintiff for the November 2023 elections for Monroe County Legislature, including primary elections preceding the November 2023 general elections for Monroe County Legislature. For the reasons that follow, the application for a temporary restraining order and preliminary injunction is DENIED.
In his submissions supporting the requested relief plaintiff proposed changing the political calendar for the Monroe County Legislature races only in the following ways: (1) changing the first day for signing designating petitions under Election Law § 6-134, Subd. 4 from February 28, 2023 to April 10, 2023; (2) changing the dates for filing designating petitions under Election Law § 6-158, Subd. 1 from April 3-6, 2023 to May 1-4, 2023: (3) changing the last day to authorize designations under Election Law § 6-120, Subd. 3 from April 10, 2023 to May 8, 2023; (4) changing the last day to accept or decline designations under Election Law § 6-158, Subd. 2 from April 10, 2023 to May 8, 2023; (5) changing the last day to fill a vacancy after a declination under Election Law § 6-158, Subd. 3 from April 14, 2023 to May 12, 2023; (6) changing the last day to file authorization of substitution after declination of a designation under Election Law § 6-120, Subd. 3 from April 18, 2023 to May 16, 2023. Plaintiff also proposed lowering the signature requirements for ballot access.
Relevant Facts
On May 8, 2022 the defendants herein appointed a Legislative District Revision Commission to make recommendations to the Monroe County Legislature "as to changes in the boundaries of legislative districts" as required by the Monroe County Charter. Thereafter, a series of public forums were conducted, and the Commission held thirteen (13) meetings between March 24th and December 23rd of 2022. On September 6, 2022 the Commission recommended a legislative district map, and it was adopted by the Monroe County Legislature, but it was vetoed by the Monroe County Executive. On December 23, 2022, the Commission recommended a second map which was adopted by the Legislature by a vote of 27-2. The County Executive signed the local law approving the map on January 5, 2023.
Monroe County Legislature, Resolution No. 80 of 2022; Monroe County Charter § C2-12(c)(1).
https://www.monroecounty.gov/legislature-drc
According to the Minutes of the Monroe County Special Meeting of the Legislature held on December 29, 2022, of which the Court takes judicial notice (see Brandes Meat Corp. v. Cromer , 146 A.D.2d 666, 537 N.Y.S.2d 177 [2nd Dept. 1989] ), Legislators Allkofer, Barnhart, Baynes, Brew, Burgess, Colby, Delehanty, Delvecchio Hoffman, DiFlorio, Dondorfer, Frazier, Hasman, Hebert, Hughes-Smith, Johns, Keller, LaMar, Long, Maffucci, McCabe, Milne, Morris, Roman, Smith, Taylor, Vecchio, Yudelson voted to approve the local law. Legislators Blankley and Vazquez Simmons voted against the local law.
Plaintiff's complaint (filed March 3, 2023-almost two months after the local law was signed by the County Executive) alleges that the map violates Municipal Home Rule Law § 34(4)(b) in that it denies voting rights to black voters; § 34(4)(d) in that it contains districts that are not as compact in form as practicable; and § 34(4)(e) in that the map was drawn to favor incumbents, candidates, and political parties. Plaintiff alleges that he has standing pursuant to " Article III, Section 5 of the New York State Constitution and New York State Unconsolidated Laws of § 4221", and seeks declaratory judgment that the map is invalid, and that a new map be developed either by the defendants, or by the Court with the assistance of a special master, and a permanent injunction preventing the defendants from conducting elections under the existing map. In support of the Complaint plaintiff attached the six-page report of Jeanne Clelland, Ph.D. (titled "Incumbency Protection In 2022 Legislative Redistricting For Monroe County, NY") in which she opined that based upon her analysis of the map, "it [is] extremely unlikely that the 2022 plan was drawn without a deliberate intention to favor incumbent members running for reelection".
Complaint (NYSCEF Docket # 2) at ¶ 72.
"Incumbency Protection In 2022 Legislative Redistricting For Monroe County, NY", Jeanne Clelland, Ph.D. (NYSCEF Docket # 3).
On March 17, 2023 (two weeks after filing the Complaint), plaintiff brought the instant application for a temporary restraining order and preliminary injunction. In addition to the allegations in the Complaint and Dr. Clelland's Report, plaintiff submitted the affidavit of Monroe County Legislator Rachel Barnhart. In her affidavit, Legislator Barnhart avers that during negotiations between the republican and democratic caucuses current legislators made statements indicative of a desire to fashion advantageous districts in which to run for reelection. Additionally, she avers that one version of the proposed map did not contain the required number of Black majority voting districts as required by MHRL § 34 and federal law, and that the districts that were created as purportedly Black districts were done to protect Republican Party interests, or protect specific democratic incumbents. Finally, she avers that given the advantage the Monroe County Democratic Party has in registered voters compared to the Republican Party, the proposed districts favored Republican Party interests disproportionally to the number of voters who are registered in the Republican Party in Monroe County.
See, e.g., Barnhart Affidavit (NYSCEF Docket # 7) at ¶¶ 35; 36; 37; 38-40; 45; 47; 92-93.
Legislator Barnhart specifically objects to a proposed map created by the Republican caucus that placed a City of Rochester neighborhood (Charlotte) which contains a large number of voters who are registered as Democrats into Irondequoit, which already has a large number of voters who are registered in the Democrat Party. Instead, Legislator Barnhart avers that these votes should have been used to favor the Democratic caucus in fashioning a district that would favor a Democratic candidate. (Barnhart Affidavit at ¶¶ 89-91; 103-106). It is unclear whether this proposal was incorporated into the final map as Legislator Barnhart states "[t]he final map included most of the requests made via the Bello-McCann proposal" (id. at ¶ 120) but her claim of "packing" the Irondequoit district was made against a proposed map, not the Bello-McCann map.
Based on the above submissions, plaintiff, citing Harkenrider v. Hochul , 38 N.Y.3d 494, 176 N.Y.S.3d 157, 197 N.E.3d 437 (2022) requests injunctive relief as outlined above, or moving the scheduled date for the primary election (and other statutory deadlines) for Monroe County legislator candidates to allow time for the Court to draw a new map.
In opposition to plaintiff's application for a TRO/ preliminary injunction the defendants submit the combined affidavit of Lisa P. Nicolay, Republican Commissioner for the Monroe County Board of Elections, and Jackie Ortiz, the Democratic Commissioner for the Monroe County Board of Elections. In the affidavit Commissioners Nicolay and Ortiz aver that given the required deadlines in the New York State Election Law (known as the "Political Calendar" ) granting a preliminary injunction would necessitate a second primary election for Monroe County Legislature seats at an estimated cost of $1,291,360. They further aver that a second primary election would create a significant risk of voter confusion and possible disenfranchisement.
https://www.elections.ny.gov/NYSBOE/law/2023PoliticalCalendar.pdf
This figure was supported by the Affirmation of David W. Reilich, Finance Administrator for the Monroe County Board of Elections (NYSCEF Docket # 15).
Affidavit of Lisa Nicolay and Jackie Ortiz (NYSCEF Docket # 14) at ¶¶ 12-18.
The defendants argue that: (1) given the complexities of the primary process, the schedule proposed by the plaintiff to develop a new map in time for the June 27, 2023 primary is not feasible; (2) plaintiff's reliance on Harkenrider as support for a preliminary injunction is misplaced; (3) plaintiff cites to no other law or authority which would allow for the issuance of a preliminary injunction under the facts alleged by plaintiff; (4) the Barnhart affidavit is based upon speculation and conjecture, and most factual averments contained therein are applicable to prior, proposed maps, and thus does not support the requested relief; (5) the Barnhart affidavit relies upon inadmissible hearsay; (6) the Barnhart affidavit relies upon inadmissible non-expert opinion; (7) plaintiff has not shown likelihood of success on the merits, as plaintiff has not established sufficient standing and the doctrine of laches would operate to dismiss the complaint; (8) the plaintiff's complaint is deficient ; and (9) the balance of the equities favors denial of the requested TRO and preliminary injunction; and (10) the plaintiff must provide an undertaking, should the relief be granted, and $1,291,360 should be the appropriate amount.
Defendants filed concomitantly with their opposition papers a motion to dismiss that is scheduled to be heard by the Court on May 9, 2023.
Plaintiff, in addition to the arguments made in his initial papers, responds that any delay in initiating the action should be excused given the defendants’ delay in passing the map as well as the forty-five (45) day waiting period required by MHRL § 24(1)(a). Plaintiff also argues the defendants had "unclean hands" and this precludes their assertion of the laches defense. Plaintiff also argues that rescheduling the primary election is within the Court's authority as granted by Harkenrider , that the Barnhart affidavit and its allegations are admissible, and that the Plaintiff would suffer irreparable harm should the election proceed under the current map.
That law states, in part: "[a] local law adopted by a county, city or town and subject to referendum on petition as provided in this section or in any other state statute, if not also subject to mandatory referendum, shall not take effect until at least forty-five days after its adoption; nor until approved by the affirmative vote of a majority of the qualified electors of the local government voting on a proposition for its approval if within forty-five days after its adoption there be filed with the clerk a petition protesting against such local law ..." (MHRL § 24[1][a].) The local law adopted by the defendants was subject to a permissive referendum (see MHRL § 24[2][j].)
As to standing, plaintiff submits that as MHRL § 34(4) is the analogous provision to the New York State constitutional provisions prohibiting "gerrymandering" of State legislative and congressional maps, the standing provision in Article III, Section 5, which grants standing to "any citizen", should be applied to MHRL § 34(4) cases. Furthermore, plaintiff submits that has he lives in a district that "cracked" or "packed" voters, he has standing under Gill v. Whitford , ––– U.S. ––––, 138 S. Ct. 1916, 201 L.Ed.2d 313 (2018).
Finally, plaintiff submits that an undertaking should not be required as the necessity of a rescheduled primary "falls squarely at the feet of the defendants themselves" due to their delay in passing the local law implementing a new apportionment map.
Plaintiff's Reply Memorandum of Law (NYSCEF Docket # 28) at page 21.
Conclusions of Law
"In order to prevail on a motion for a preliminary injunction, the moving party has the burden of demonstrating, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury in the absence of injunctive relief, and (3) a balance of equities in its favor (see Nobu Next Door, LLC v. Fine Arts Hous. , Inc. , 4 N.Y.3d 839 [800 N.Y.S.2d 48, 833 N.E.2d 191] [2005] ; Emerald Enters. of Rochester v. Chili Plaza Assoc. , 237 A.D.2d 912 [1997] )." ( Eastman Kodak Co. v. Carmosino , 77 A.D.3d 1434, 1435, 909 N.Y.S.2d 247 [4th Dept. 2010].)
Plaintiff has failed to establish the likelihood of success on the merits.
As a threshold matter, it does not appear that the plaintiff has standing to support all three causes of action in the complaint under either the federal standard for standing in gerrymandering cases, or under a challenge to MHRL § 34(4) (a New York State law challenge to gerrymandering). Plaintiff alleges in the Complaint that he is an elector who resides in Legislative District (hereinafter "LD") 16. In his first cause of action (impermissible gerrymandering to favor incumbents) plaintiff makes claims related to LDs 11 and 18, and references to "at least ten legislative districts" which he does not identify. In his second cause of action (impermissible racial gerrymandering) the plaintiff alleges the dilution of Black voters and references LDs 22 and 29-but not LD 16. In his third cause of action (violation of compactness of districts) plaintiff cites LDs 17, 22, 26, and 29 as violating the relevant provisions-but not LD 16, the district within which he resides. Instead, plaintiff argues that he has standing pursuant to Article III, Section 5 of the New York State Constitution and Unconsolidated Laws § 4221.
Under the federal standard for standing in racial gerrymandering cases, "a plaintiff who alleges that he is the object of a racial gerrymander—a drawing of district lines on the basis of race—has standing to assert only that his own district has been so gerrymandered. See United States v. Hays , 515 U.S. 737, 744—745, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995). A plaintiff who complains of gerrymandering, but who does not live in a gerrymandered district, "assert[s] only a generalized grievance against governmental conduct of which he or she does not approve." Id. , at 745, 115 S.Ct. 2431. Plaintiffs who complain of racial gerrymandering in their State cannot sue to invalidate the whole State's legislative districting map; such complaints must proceed "district-by-district." Alabama Legislative Black Caucus v. Alabama , 575 U.S. [254], ––––, 135 S.Ct. 1257, 1265, 191 L.Ed.2d 314 (2015)." ( Gill v. Whitford, supra at 1930 [2018].)
Similarly, plaintiff did not allege that he resides in a district suffering from the infirmities prohibited by MHRL § 34(4) or federal law. Although he makes vague allegations of "cracking" or "packing" in "at least ten" LDs, and specifically claims LDs 11 and 18 suffer from that infirmity, his Complaint is devoid of any allegations that his district, LD 16, was formed in violation of the provisions of MHRL § 34(4) or relevant federal law. Nor does plaintiff claim his district violates the provision against non-compact districts. Thus, it would not appear that plaintiff satisfies the standing threshold under federal Article III principles. ( Gill v. Whitford, supra .)
Nor does it appear that plaintiff satisfies the traditional standing principles under New York law. "Whether a person seeking relief is a proper party to request an adjudication is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation ( Matter of Dairylea Coop. v. Walkley , 38 N.Y.2d 6, 9, 377 N.Y.S.2d 451, 339 N.E.2d 865 [1975] ). Standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria (see , Comment, Standing of Third Parties to Challenge Administrative Agency Actions, 76 Cal.L.Rev. 1061, 1067–1068 [1988] ; see also, Warth v. Seldin , 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 [1975] ). That an issue may be one of "vital public concern" does not entitle a party to standing." ( Soc'y of Plastics Indus., Inc. v. Cty. of Suffolk , 77 N.Y.2d 761, 769, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991].)
"The test for determining a litigant's standing is well settled. A plaintiff has standing to maintain an action upon alleging an injury in fact that falls within his or her zone of interest. "The existence of an injury in fact—an actual legal stake in the matter being adjudicated—ensures that the party seeking review has some concrete interest in prosecuting the action which casts the dispute ‘in a form traditionally capable of judicial resolution’ " ( Society of Plastics Indus. [Inc. ] v. County of Suffolk , 77 N.Y.2d 761, 772, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991] [citation omitted])." ( Silver v. Pataki , 96 N.Y.2d 532, 539, 730 N.Y.S.2d 482, 755 N.E.2d 842 [2001].) As noted above, plaintiff does not allege that he resides in a district that was impermissibly gerrymandered in violation of MHRL § 34. As it appears plaintiff instead is seeking to vindicate the rights of others living in alleged impermissibly gerrymandered districts, he would not have standing to maintain the present action. Although the Court of Appeals has stated that the principles of standing should not be overly restrictive (see Matter of Sun-Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead , 69 N.Y.2d 406, 413, 515 N.Y.S.2d 418, 508 N.E.2d 130 [1987] ), something more than the interest of the public at large must be present before standing is conferred on a person seeking to challenge an administrative determination. ( Id. )
Having not plead sufficient facts to establish standing under federal or New York State principles, plaintiff relies upon Article III, Section 5 of the New York State Constitution and Unconsolidated Laws § 4221 to establish his standing. If plaintiff were challenging the State legislative maps, those provisions would entitle plaintiff to standing to challenge congressional districts, as well as a map developed by the independent redistricting commission ( Harkenrider v. Hochul, supra at 508, 176 N.Y.S.3d 157, 197 N.E.3d 437.) NY Const. art. III, § 5 states, in part: "An apportionment by the legislature, or other body, shall be subject to review by the supreme court, at the suit of any citizen, under such reasonable regulations as the legislature may prescribe ..." . However, it is not clear that these constitutional provisions apply to establish standing to challenge local laws which implement maps for county legislative districts. The terms are clearly referring to the New York State Legislature. Furthermore, Unconsolidated Laws §§ 4221 (cited by plaintiff) and 4222, and the accompanying provisions, apply to challenges to New York State Legislature apportionments of senate, assembly, and congressional districts. The reference in Unconsolidated Law § 4222 to "any other body" pertains to challenges to apportionments of assembly districts by bodies other than the New York State Legislature, but clearly applies only to challenges to assembly districts. (See Goldstein v. Rockefeller , 45 Misc.2d 778, 780, 257 N.Y.S.2d 994 [Sup. Ct. Monroe Cty. [1965] ; In re Richardson , 307 N.Y. 269, 121 N.E.2d 217 [1954].)
The "reasonable regulations" are contained in Unconsolidated Laws § 4221 et seq. These provisions clearly contemplate actions brought to challenge State legislative apportionment, not challenges to local apportionment laws. (See e.g. Unconsolidated Laws § 4223 : "... The court may enter an order directing any officer of the state charged with the duty of issuing notices of election to issue notices of any ensuing election in accordance with its determination" [emphasis added].)
"An apportionment by the legislature shall be subject to review by the supreme court at the suit of any citizen, upon the petition of any citizen to the supreme court where any such petitioner resides and upon such service thereof upon the attorney-general, the president of the senate, the speaker of the assembly and the governor, as a justice of the supreme court may direct." (Unconsolidated Law § 4221.)
"An apportionment by any other body shall be subject to review by the supreme court at the suit of any citizen, upon the petition of any citizen to the supreme court where any such petitioner resides, and upon such service therof1 upon the presiding officer of such other body, or upon such members thereof, and upon the attorney-general, as a justice of the supreme court may direct." (Unconsolidated Laws § 4222.)
Plaintiff argues that as Municipal Home Rule Law § 34(4) is an analogous provision to the anti-gerrymandering provisions in the New York Constitution (Art. III, Section 4 [c]) the standing provision contained in Article III, Section 5 must also apply to challenges to local laws. Plaintiff points out that as the statutory text of the MHRL § 34(4) provisions is similar to the language contained in Art. III, Section 4, ergo the legislature must also have intended that the standing provisions of Art. III, Section 5 apply as well. However, the exclusion by the Legislature of the standing provision in Art. III, Section 5 when it passed MHRL § 34(4) must be presumed to be intentional. (See Commonwealth of N. Mariana Islands v. Canadian Imperial Bank of Com. , 21 N.Y.3d 55, 60, 967 N.Y.S.2d 876, 990 N.E.2d 114 [2013] : "the failure of the legislature to include a term in a statute is a significant indication that its exclusion was intended"; People v. Finnegan , 85 N.Y.2d 53, 623 N.Y.S.2d 546, 647 N.E.2d 758 [1995].)
The provision in Art. III, Section Five which states "[a]n apportionment by the legislature, or other body, shall be subject to review by the supreme court, at the suit of any citizen, under such reasonable regulations as the legislature may prescribe" was not added by the recent amendments creating the independent redistricting commission. It was added to the New York Constitution in 1894. (See Matter of Sherrill v. O'Brien , 188 N.Y. 185 [1907].) Thus, when the Legislature adopted the amendments to MHRL § 34 incorporating the recent amendments to the New York Constitution creating the independent redistricting commission and the relevant factors, it must be presumed it was aware of the 125-year-old constitutional provision that granted standing to citizens seeking to challenge the apportionment of State legislative districts contained in Art. III, Section Five. Its omission from MHRL § 34(4) must be presumed to be intentional.
Plaintiff's argument that "[r]equiring individualized district-based injury-in-fact would make the law unenforceable because no one would have standing to challenge the entire countywide redistricting plan as contemplated by the statute" (plaintiff's Reply Memorandum of Law at page 15) is unavailing. It is very common that challenges to redistricting proposals alleging multiple statutory or constitutional violations contain multiple plaintiffs, with one or more plaintiffs from each district, and each alleging the personal factors that provide them standing. This is required by the principles of standing. No "one person" may have automatic standing to challenge the local law herein, but that does not equate with "no one" has standing. Multiple plaintiffs may provide the necessary standing to challenge the local law herein (e.g. , one from each district claimed to be drawn in violation of MHRL § 34[4] ), or one plaintiff who alleged they were Black, lived in a district that was gerrymandered in violation of MHRL § 34(4)(b), and that was "cracked" or "packed", and not compact. But plaintiff did not allege any of these factors applied to him, and he cannot raise a challenge designed to advance the rights of others, or the public in general.
Plaintiff also argues that the language in Art. III, Section Five granting standing to "any citizen" applies only to challenging the apportionment of assembly districts (he cites no caselaw in support of this claim), and the Court of Appeals ignored that in holding that the plaintiffs in Harkenrider had standing to challenge the senate and congressional maps. He argues, inferentially, that this Court should do the same and apply that provision to the plaintiff herein. However, plaintiff's position is meritless. Although the relevant language is contained in Art. III, Section Five which is titled "[a]pportionment of assembly members; creation of assembly districts" its terms do not apply solely to challenges to the apportionment of assembly districts. The language clearly applies to all apportionments done by the legislature. (See Matter of Sherrill v. O'Brien , 188 N.Y. 185, 195 [1907] : "This constitutional provision is new, and it was intended to and does set at rest any further claim that the legislature in passing an act reapportioning the state for legislative purposes is so far exercising a political, as distinguished from a legislative power, that its action cannot be reviewed by the courts. The jurisdiction of the Supreme Court of this state to review an apportionment by the legislature or other body is now express ..."; see also Schieffelin v. Komfort , 212 N.Y. 520, 529 [1914] : "The fact that the Constitution makes express provision for a review by the Supreme Court of an act of the Legislature apportioning the state into districts, at the suit of any citizen, and refrains from providing for such a review in other cases, is of itself evidence that it was not the intention of the people by the Constitution to confer upon the judicial branch of government general authority at the suit of a citizen as such to sit in review of the acts of other branches of government.") The Court of Appeals in Harkenrider applied the clear language of the constitutional provision contained in Art. III, Section Five and held that the plaintiffs therein had the requisite standing. Assuming arguendo plaintiff does have standing to proceed with the underlying action, he did not meet his burden to show, by clear and convincing evidence, that he would succeed on the merits in the underlying action.
Plaintiff's claims that the districts were unlawfully gerrymandered are subject to a high burden-proof beyond a reasonable doubt that the districts were drawn in violation of MHRL § 34(4). "Legislative enactments, including those implementing redistricting plans, are entitled to a "strong presumption of constitutionality" and redistricting legislation will be declared unconstitutional by the courts " ‘only when it can be shown beyond reasonable doubt that it conflicts’ " with the Constitution after " ‘every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible’ " ( Matter of Wolpoff v. Cuomo , 80 NY2d 70, 78, 587 N.Y.S.2d 560, 600 N.E.2d 191 [1992], quoting Matter of Fay , 291 N.Y. 198, 207, 52 N.E.2d 97 [1943] [internal quotation marks omitted]; see Cohen v. Cuomo , 19 N.Y.3d 196, 201-202, 946 N.Y.S.2d 536, 969 N.E.2d 754 [2012] )." ( Harkenrider v. Hochul, supra at 509, 176 N.Y.S.3d 157, 197 N.E.3d 437 ; see also Rochester Gas & Elec. Corp. v. Pub. Serv. Comm'n of State of NY , 71 N.Y.2d 313, 525 N.Y.S.2d 809, 520 N.E.2d 528 [1988].) Although plaintiff invokes the statutory prohibition against gerrymandering as opposed to the Constitutional provisions applicable to the drawing of State legislative districts, to ultimately prevail his burden is the same-proof beyond a reasonable doubt that the districts were drawn in violation of MHRL § 34(4).
On an application for a TRO/ preliminary injunction plaintiff need not satisfy that burden at this stage, but he must prove by clear and convincing evidence the likelihood that he would do so after a trial. Plaintiff's evidentiary submissions fall below that exacting standard. As defendants correctly argue, the Barnhart Affidavit contains information that may be relevant to a determination that the local law violates MHRL § 34(4) but it is not sufficient to establish by clear and convincing evidence that plaintiff will likely prevail after trial. The significant majority of the averments contained in the affidavit concern the political haggling that occurred prior to the development of the final map. This evidence may be relevant as to the intent of the defendants and the individual legislators who prepared the final map contained in the local law, but it is not dispositive.
Nor is Legislator Barnhart's analysis of the districts she denominated "one-to-one" compelling enough to conclude plaintiff will likely prevail. Most citizens would think that a legislative district in which the ratio of registered democratic voters and republican/conservative voters were approximately equal, and thus provide the democratic candidates and republican candidates an equal "playing field" to be a non-gerrymandered district. Instead, Ms. Barnhart alleges that districts in which there are up to 120 democratic voters for every 100 republican/ conservative voters to be gerrymandered in favor of the republicans. To support this claim, Legislator Barnhart relies upon prior election results which purport to show that in odd-year elections, a greater number of republican/conservative voters vote than voters registered as democrats. MHRLL § 34(4) — and the concomitant New York Constitutional provision contained in Art. III, Section Four (c)(5)-state that "[d]istricts shall not be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties" that does not compel the conclusion that districts drawn as "equal" as far as the number of registered voters in each party violate that provision. Although Ms. Barnhart's analysis of prior elections may be relevant evidence, it is not dispositive as she fails to account for the impact of the other mandated factors which may have influenced how the districts were drawn.
Legislator Barnhart argues that these "one-to-one" districts (in which voter registration in the district between registered Democrats and registered Republicans/ Conservatives, in her opinion, is largely equal) impermissibly favors the Republican Party's candidates, as Republican voter turnout is higher in odd-year elections. (This, of course, relies upon the questionable foundation that voters registered for a political party always vote for that party's candidate.) However, she notes later in her affidavit that as the County Executive is running for re-election in 2023 (an odd-year election) that "will drive up Democratic turnout". (Barnhart Affidavit at ¶ 152.) Additionally, she fails to explain the basis for her opinion that "I believe that Republicans attempt to configure the voting districts to create as many districts as possible in which the ratio of Democratic voter enrollment and Republican/Conservative voter enrollment is between .85 and 1.2" (id. at ¶ 121), nor does she explain why that ratio was used. As she is not an expert in redistricting, election law, or statistics, the Court cannot accept her unsupported opinions as proof to satisfy plaintiff's heavy burden.
In conducting such an analysis, Ms. Barnhart — unlike the experts called by the parties in the Harkenrider case, does not analyze each district using a statistical analysis to conclude that the district was not competitive. Compare Harkenrider v. Hochul, supra at 519, 176 N.Y.S.3d 157, 197 N.E.3d 437 : "In this case, petitioners asserted that, along with being procedurally flawed, the 2022 congressional map enacted by the legislature violates the constitutional provision prohibiting partisan gerrymandering." To prevail on such claim, petitioners bore the burden of proving beyond a reasonable doubt that the congressional districts were drawn with a particular impermissible intent or motive — that is, to "discourage competition" or to "favor[ ] or disfavor[ ] incumbents or other particular candidates or political parties" (NY Const, art III, § 4 [c] [5]). Such invidious intent could be demonstrated directly or circumstantially through proof of a partisan process excluding participation by the minority party and evidence of discriminatory results (i.e., lines that impactfully and unduly favor or disfavor a political party or reduce competition).
Here, at the conclusion of the non-jury trial, Supreme Court — based on the partisan process, the map enacted by the legislature itself, and the expert testimony proffered by petitioners — found by "clear evidence and beyond a reasonable doubt that the congressional map was unconstitutionally drawn with political bias" to "significantly reduce[ ]" the number of competitive districts." (Emphasis added.) Here, there was not a partisan process (members of both caucuses prepared the final map and it was passed by the Monroe County Legislature by a vote of 27-2, with Legislator Barnhart voting to approve the map), and the only expert testimony offered by plaintiff is Dr. Clelland.
The factors outlined in the statute are: "a. If such plan of districting or redistricting includes only single-member districts, such districts shall be as nearly equal in population as is practicable; the difference in population between the most and least populous district shall not exceed five percent of the mean population of all districts. If such plan of districting or redistricting includes multi-member districts, the plan shall provide substantially equal weight for the population of that county in the allocation of representation in the legislative body of that county; and
b. Districts shall not be drawn with the intent or result of denying or abridging the equal opportunity of racial or language minority groups to participate in the political process or to diminish their ability to elect representatives of their choice; andc. Districts shall consist of contiguous territory; and
d. Districts shall be as compact in form as practicable; and
e. Districts shall not be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties. The maintenance of cores of existing districts, of pre-existing political subdivisions including cities, villages, and towns, and of communities of interest shall also be considered. To the extent practicable, no villages, cities or towns except those having more than forty percent of a full ratio for each district shall be divided; and
f. Districts shall be formed so as to promote the orderly and efficient administration of elections.
She has not shown that the lines of each district "impactfully and unduly favor or disfavor a political party or reduce competition". ( Harkenrider v. Hochul, supra at 519, 176 N.Y.S.3d 157, 197 N.E.3d 437.)
Ms. Barnhart is not an expert in redistricting or statistics, and the Court declines to recognize her analysis as sufficiently supported to provide it the deference given to the reports of expert witnesses.
Although the Court accepts Jeanne Clelland, Ph.D. as an expert in redistricting, her report does not establish the likelihood that plaintiff will prevail in establishing at trial, beyond a reasonable doubt, that the districts were drawn in violation of MHRL § 34(4)(e). A portion of the report relies upon unidentified hearsay to determine which incumbents were running for reelection (the report is dated January 13, 2023-six weeks prior to the date designating petitions could be circulated for candidates for Monroe County Legislature) . Furthermore, as Dr. Clelland concedes, there are other factors that may influence how the districts were drawn that may result in a legal map in which the final districts have the incumbents’ residences located in the new districts. MHRL § 34(4) lists the factors to be considered in drawing new districts, in order of priority, and the consideration of those factors may have resulted in the final map in which most incumbents resided in their new district. Dr. Clelland's conclusions that this is statistically unlikely has not been tested by cross-examination and although it may be sufficient support to defeat a motion to dismiss the Complaint, it is not sufficient support to meet the plaintiff's heavy burden on a TRO/preliminary injunction application.
As Dr. Clelland concedes, her conclusion that the "26-district ensemble" more accurately reflects the "state of affairs regarding incumbency protection in the design of the [final map]" is based upon the hearsay that it is "well known" that incumbents in certain districts were not running for reelection. The source of this hearsay is not known, and it is not averred that this hearsay information is commonly relied upon by experts in reaching conclusions in redistricting cases. ("An expert may rely on hearsay in rendering an opinion provided that it is "of a kind accepted in the profession as reliable in forming a professional opinion" People v. Sugden , 35 N.Y.2d 453, 460 [363 N.Y.S.2d 923, 323 N.E.2d 169] [1974] ; see Greene v. Xerox Corp. , 244 A.D.2d 877, 877-878 [1997], lv denied 91 N.Y.2d 809 [670 N.Y.S.2d 403, 693 N.E.2d 750] [1998] )." (Woodhouse v. Bombadier Motor Corp. of Am. , 5 A.D.3d 1029, 1030, 773 N.Y.S.2d 732 [4th Dept. 2004].) Absent this hearsay evidence, Dr. Clelland's analysis of a "29-district ensemble" concluded that the final map "was likely deliberately designed to favor incumbents, but it is also within the realm of possibility that this result occurred by chance ". (Dr. Clelland's report at page 5 [emphases added].) Relevant evidence, and perhaps compelling, but not proof beyond a reasonable doubt-especially as it has not been subject to cross-examination.
Plaintiff has Failed to Establish the Equities are in His Favor
The doctrine of laches applies to preclude plaintiff from his requested relief.
"Laches is "an equitable bar, based on a lengthy neglect or omission to assert a right and the resulting prejudice to an adverse party" ( Saratoga County Chamber of Commerce [Inc. ] v. Pataki , 100 N.Y.2d 801, 816 [766 N.Y.S.2d 654, 798 N.E.2d 1047] [2003] ; see Matter of Barabash , 31 N.Y.2d 76, 81 [334 N.Y.S.2d 890, 286 N.E.2d 268] [1972] ). "The essential element ... is delay prejudicial to the opposing party" ( Matter of Barabash , 31 N.Y.2d at 81 [334 N.Y.S.2d 890, 286 N.E.2d 268] ; see Saratoga County Chamber of Commerce v. Pataki , 100 N.Y.2d at 816-818 [766 N.Y.S.2d 654, 798 N.E.2d 1047] ; Matter of Schulz v. State of New York , 81 N.Y.2d [336] at 348 [599 N.Y.S.2d 469, 615 N.E.2d 953 (1993)] )." ( League of Women Voters of New York State v. New York State Bd. of Elections , 206 A.D.3d 1227, 1229, 170 N.Y.S.3d 639 leave to appeal denied , 38 NY.3d 909, 2022 WL 2127999 (2022) ), reargument denied , 38 N.Y.3d 1120, 172 N.Y.S.3d 673, 192 N.E.3d 1152 (2022)
As noted above, the local law was signed by the county executive on January 5, 2023. Plaintiff did not initiate this action until March 3, 2023-almost two months after the local law was signed. Plaintiff's explanation for the delay was that as the local could not become effective until February 19, 2023 (due to the provisions of MHRL § 24[1][a] ) he could not initiate this action. That contention is without merit. A challenge to the local law became ripe for adjudication as soon as it was signed by the county executive. (See Fossella v. Dinkins , 114 A.D.2d 340, 493 N.Y.S.2d 859 [2nd Dept. 1985].) Had there been a petition for a referendum (none was filed) the issue would still have been ripe for adjudication as soon as the local law was signed, as the Court would have the authority to determine whether an unconstitutional local law should remain on the ballot. As noted by the Court of Appeals in New York Pub. Int. Rsch. Grp., Inc. v. Carey , 42 N.Y.2d 527, 399 N.Y.S.2d 621, 369 N.E.2d 1155 (1977) :
That is not to say that the courts may never consider the validity of proposed legislation. This has been done on several occasions, although with reluctance and then only incidentally to resolve a dispute as to whether the proposition should be placed or remain on the ballot (see, e.g., Matter of McCabe v. Voorhis, supra ; Matter of Tierney v. Cohen , 268 N.Y. 464 [198 N.E. 225 (1935)] ; Matter of Osborn v. Cohen , 272 N.Y. 55 [4 N.E.2d 289 (1936)] ; Matter of Mooney v. Cohen , 272 N.Y. 33 [4 N.E.2d 73 (1936)] ; Johnson v. Etkin , 279 N.Y. 1 [17 N.E.2d 401 (1938)] ; Matter of Stroughton v. Cohen , 281 N.Y. 343 [23 N.E.2d 460 (1939)] ; Matter of Atwood [Astwood ] v. Cohen , 291 N.Y. 484 [53 N.E.2d 358 (1944)] ).
These are not advisory opinions. The effect of the court's determination in those cases does not depend on the outcome of the election. On the contrary, those orders have the immediate and practical effect of determining whether the proposition should be submitted to the voters, or whether all the expense and human effort involved in the election process would be wasted because of fatal defects in the law.
( Id. at 531-532, 399 N.Y.S.2d 621, 369 N.E.2d 1155.)
New York Pub. Int. Rsch. Grp., Inc. v. Carey involved a proposed law subject to a mandatory referendum, an important distinction to the local law herein and the plaintiff's claims that it is unconstitutional on its face. ("Facial challenges "are generally ripe the moment the challenged regulation or ordinance is passed" ( Suitum v. Tahoe Regional Planning Agency , 520 U.S. 725, 736 n. 10, 117 S.Ct. 1659, 137 L.Ed.2d 980 [1997] ; see also Kittay v. Giuliani , 252 F.3d 645, 646—647 [2d Cir. 2001] )". Real Est. Bd. of New York, Inc. v. City of New York , 165 A.D.3d 1, 9, 84 N.Y.S.3d 33 [1st Dept. 2018].) Unlike the situation in New York Pub. Int. Rsch. Grp., Inc. v. Carey where the voters may have voted down the proposed legislation at the mandatory referendum stage, thus rendering the request for a declaratory judgment that the legislation was unconstitutional not ripe for review, here the law was final unless a petition had been filed seeking a referendum. Had a petition for a referendum been filed, the local law still would have been subject to judicial review as of January 5, 2023. ( New York Pub. Int. Rsch. Grp., Inc. v. Carey , supra , cases cited therein at 531-532.) However, assuming the local law did not become ripe for judicial review until February 19th, plaintiff fails to explain his delay from February 19, 2023, until the filing of the complaint on March 3, 2023, and the additional two-week delay in filing the application for the TRO/ preliminary injunction (March 17, 2023). Plaintiff's expert's report is dated January 13, 2023, and none of the facts alleged in the Complaint occurred after that date. Ms. Barnhart's Affidavit avers facts that occurred prior to January 5, 2023. In short, nothing prevented the plaintiff from filing this action and application on February 19th (or on January 6th).
Plaintiff also argues that the defendants do not have "clean hands", and this defeats their argument that laches should bar the requested relief. Plaintiff argues that the defendants unreasonably delayed in adopting a new map and this excuses the plaintiff's delay. The Court finds this unavailing. The political haggling that occurred between the Democratic and Republican caucuses in developing the final map is not unexpected. Although this "partisan bickering" was not to plaintiff's liking, it does not excuse his significant delay in initiating the action and the delay in seeking the preliminary injunction.
The plaintiff's unreasonable and unexcused delay in filing the complaint, and in seeking the TRO/preliminary injunction results in extreme prejudice to the defendants and the voters of Monroe County. ( League of Women Voters of New York State v. New York State Bd. of Elections , 206 A.D.3d 1227, 1230, 170 N.Y.S.3d 639 leave to appeal denied , 38 N.Y.3d 909, 170 N.Y.S.3d 546, 190 N.E.3d 570 [2022], reargument denied , 38 N.Y.3d 1120, 172 N.Y.S.3d 673, 192 N.E.3d 1152 [2022] : "election matters are exceedingly time sensitive and protracted delays of this nature impose impossible burdens upon respondent, who is obligated to comply with the strict timelines set forth in the Election Law.")
The relief requested by plaintiff would upend the political calendar in Monroe County. Plaintiff's proposal to change the dates for collecting signatures on designating petitions and other dates set by the election law (see footnote 2, supra) to meet the June 27th primary date fails to consider important deadlines and would result in disenfranchising voters. For instance, plaintiff proposed changing the dates to accept or decline designations from April 10 to May 8th, the last date to fill a vacancy after declination to May 12th (from April 14th), and changing the last day to file authorization of substitution after declination of a designation April 18, 2023 to May 16th. But these provisions ignore the statutory requirement that the county board of elections certify the primary ballot by May 4th ( Election Law § 4-114 ), and the requirement that military ballots be transmitted by May 12th (Election Law §§ 10-10[B][1], 11-204[4] ). Granting the plaintiff's application would necessitate disenfranchising some voters.
Alternatively, during oral argument on the application for a TRO/ preliminary injunction, the plaintiff argued for alternative relief in ordering that there be a second primary election in late summer or early fall of 2023 (for only Monroe County Legislature seats). However, even if the Court were inclined to grant such extraordinary relief on the limited showing made by plaintiff, plaintiff has not established that the equities in doing so are in his favor. (See Nichols v. Hochul , 206 A.D.3d 463, 464, 170 N.Y.S.3d 70 [1st Dept. 2022] : "Supreme Court properly denied the petition to the extent it seeks to obtain a new state assembly map for use in the 2022 assembly elections. To this extent, the petition, which includes a request for an order delaying the 2022 assembly primary election to August or September 2022, is barred by the doctrine of laches, given petitioners’ unreasonable and prejudicial delay in bringing this proceeding. The request for a delay of the 2022 assembly primary elections is denied in any event, because the redrawing and implementing of a new assembly map before a 2022 primary election delayed even until September is, at this late date, no longer feasible.")
The Court accepts the representations of Lisa P. Nicolay, Republican Commissioner for the Monroe County Board of Elections, and Jackie Ortiz, the Democratic Commissioner for the Monroe County Board of Elections that a second primary election would result in voter confusion and voter disenfranchisement. According to the unrefuted averments contained in their affidavit, a second primary date creates a danger that voters would be assigned to different polling locations than those previously assigned for the June 27th primary. Furthermore, there would be the possibility that fewer polling locations would be available. Both possibilities would undoubtedly lead to voter confusion and lower turnout. As plaintiff has not established a likelihood of success on the merits, these significant, potential harms outweigh the plaintiff's speculative claim that he will be harmed by having to proceed with an election under the current map. Plaintiff Cannot Post the Required Undertaking
CPLR Rule 6312(b) requires that prior to the issuance of a preliminary injunction, the plaintiff provide an undertaking in an amount to be determined by the Court. "Significantly, when moving for a preliminary injunction, a plaintiff is required to post an undertaking in an amount fixed by the court (see , CPLR 6312 [b] ) and this requirement may not be waived (see, Smith v. Boxer , 45 A.D.2d 1054, 358 N.Y.S.2d 174 [1974] )." ( Rourke Devs. Inc. v. Cottrell-Hajeck Inc. , 285 A.D.2d 805, 805, 727 N.Y.S.2d 667 [3rd Dept. 2001].)
"Undertaking. Except as provided in section 2512 and in actions brought under section two hundred sixty-five-a of the real property law, prior to the granting of a preliminary injunction, the plaintiff shall give an undertaking in an amount to be fixed by the court, that the plaintiff, if it is finally determined that he or she was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason of the injunction ..." (CPLR Rule 6312[b].)
"The amount of that undertaking is left to the sound discretion of the court, although "it should be rationally related to the potential damages" that defendants could recover if an injunction is ultimately deemed unwarranted ( Bonded Concrete, Inc. v. Town of Saugerties , 42 A.D.3d 852, 854–855, 841 N.Y.S.2d 152 [2007] ; see Livas v. Mitzner , 303 A.D.2d 381, 383, 756 N.Y.S.2d 274 [2003] )." ( Cooperstown Cap., LLC v. Patton , 60 A.D.3d 1251, 1253–54, 876 N.Y.S.2d 186 [3rd Dept. 2009].)
Defendants have submitted the affidavit David W. Reilich, the Finance Administrator for the Monroe County Board of Elections. Mr. Reilich avers that the cost of a second primary election would be at least $1,291,360. Mr. Reilich's estimate is supported by averments as to each individual cost (e.g., ballot printing, renting machines and polling locations, wages for polling workers) necessary to conduct a primary election. Those averments were not disputed by the plaintiff.
NYSCEF Docket # 15.
The Court determined that a reasonable undertaking would be $1.2 million. However, the plaintiff conceded during oral argument that he possesses insufficient funds to pay this undertaking and argued for a reduced amount as any such undertaking would "undermine the ability of a citizen to bring an action" challenging the apportionment of local districts. The Court rejects his argument. The necessity of such a large undertaking is due to the plaintiff's delay in initiating the action. Had it been initiated in early January of 2023 the Court would have been able to resolve the issues in the Complaint without the necessity of a second primary election or modifying the dates on the political calendar to the detriment of defendants and the voters of Monroe County.
Despite plaintiff's argument that the Court's refusal to grant injunctive relief "would be an abrogation of its responsibilities" the Court must balance the equities involved in determining whether a preliminary injunction is warranted. Plaintiff has not met his heavy burden to show a likelihood of success, and absent such a showing a preliminary injunction cannot be issued. Furthermore, given the risk of voter disenfranchisement should the Court adopt plaintiff's proposed schedule of election law deadlines to maintain the June 27th primary, or by ordering a second primary election, the equities do not favor the plaintiff.
Plaintiff repeatedly cites to Harkenrider, supra , as support for the Court's authority to order the relief requested, pointing out that the Court of Appeals held in that case that "[p]rompt judicial intervention is both necessary and appropriate to guarantee the People's right to a free and fair election." (Harkenrider, supra at 522, 176 N.Y.S.3d 157, 197 N.E.3d 437.) What the plaintiff chooses to ignore is the prefatory language to that sentence in the Opinion: "[i]ndeed, our State Constitution both requires expedited judicial review of redistricting challenges (see NY Const, art III, § 5 ) — as occurred here — and authorizes the judiciary to "order the adoption of, or changes to, a redistricting plan" in the absence of a constitutionally-viable legislative plan (NY Const, art III, § 4 [e ]). Where, as here, legislative maps have been determined to be unenforceable , we are left in the same predicament as if no maps had been enacted." (Id. at 521-522, 176 N.Y.S.3d 157, 197 N.E.3d 437 [emphasis added].) The Court of Appeals simply recognized that the relevant constitutional provision (Art. III, Section Four [e]) provides a court with the power to remedy violations of the law that occur during the apportionment of legislative districts. The language states: "The process for redistricting congressional and state legislative districts established by this section and sections five and five-b of this article shall govern redistricting in this state except to the extent that a court is required to order the adoption of, or changes to, a redistricting plan as a remedy for a violation of law ". (NY Const. Art. III, § 4. [emphasis added]) Here, contrary to what occurred in Harkenrider, supra , there has been no finding that the local law (implementing the map) is violative of MHRL § 34(4).
The denial of the preliminary injunction does not deprive the plaintiff of his opportunity to proceed with his litigation seeking to invalidate the local law. However, the primary and general elections must proceed under the map defined by Local Law No. 3 of 2023 (absent intervention by the Appellate Division). Should plaintiff prevail after a trial, the Court may then fashion an appropriate remedy. Based upon the foregoing, the papers submitted, and the oral argument of the application on March 29, 2023, it is hereby
(See e.g. Nichols v. Hochul , supra at 463-464, 170 N.Y.S.3d 70 : "the petition, which includes a request for an order delaying the 2022 assembly primary election to August or September 2022, is barred by the doctrine of laches, given petitioners’ unreasonable and prejudicial delay in bringing this proceeding ... The petition is timely to the extent it seeks a declaration that the February 2022 assembly map is invalid due to procedural infirmities in the manner in which it was adopted (see Matter of Harkenrider v. Hochul [38 N.Y.3d 494, 176 N.Y.S.3d 157, 197 N.E.3d 437], 2022 NY Slip Op. 02833 ), and, consistent with that decision, we so declare. Upon the formal adoption and implementation of a new state assembly map that conforms with the procedural and substantive constitutional and statutory requirements, the February 2022 assembly map will become void and of no effect. However, for the reasons stated above, said map is to be used in the regularly scheduled 2022 assembly elections (see e.g. Badillo v. Katz , 32 N.Y.2d 825, 345 N.Y.S.2d 1014, 299 N.E.2d 258 [1973] ; Honig v. Board of Supervisors of Rensselaer County , 31 A.D.2d 989, 297 N.Y.S.2d 748 [3d Dept. 1969], affd 24 N.Y.2d 861, 301 N.Y.S.2d 94, 248 N.E.2d 922 [1969] )."
ORDERED, that the plaintiffs’ motion for a temporary restraining order and preliminary injunction is DENIED; and it is further
ORDERED, that any prayers for relief not specifically addressed herein are DENIED.
This constitutes the Decision and Order of the Court.