Opinion
Index No. E2023002165
08-17-2023
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") drawn and adopted by the Monroe County Legislature on December 29, 2022. 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. Plaintiff alleges that the map contains legislative districts favoring incumbents, denies the voting rights of black voters, 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). Plaintiff also alleges violation of his state and federal constitutional rights to freedom of association and freedom of speech.
Local Law No. 3 of 2023 (NYSCEF Docket # 11).
See generally the Amended Complaint (NYSCEF Docket # 34).
The County of Monroe, Monroe County Legislature, and Monroe County Board of Elections (hereinafter "defendants") now move pursuant to CPLR Rule 3211 (a)(3) and (a)(7) to dismiss the Amended Complaint. Defendants argue that the plaintiff lacks standing to support all four causes of action, that the doctrine of laches should compel dismissal of the complaint, and that plaintiff has failed to state a cause of action.
For the reasons that follow, the motion is GRANTED in part, and DENIED in part.
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 Amended Complaint 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 also alleges violation of his state and federal constitutional rights to freedom of association and freedom of speech. 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 "associational standing" as a member of the Democratic Party and member of the Monroe County Democratic Committee. Plaintiff 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.
Amended Complaint (NYSCEF Docket # 2) at ¶ 77.
Id. at ¶ 78.
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".
"Incumbency Protection In 2022 Legislative Redistricting For Monroe County, NY", Jeanne Clelland, Ph.D. (NYSCEF Docket # 35).
In his complaint, plaintiff alleges he is a resident of Legislative District (hereinafter "LD") 16 and a member of the Monroe County Democratic Committee for LD 21. However, the specific allegations of violations of MHRL § 34(4) alleged by plaintiff are limited to LDs 11, 17, 18, 22, 26 and 29- but not LD 16 or 21.
Conclusions of Law
The Doctrine of Laches Does not Apply
Defendants urge the Court to hold that the doctrine of laches bars the plaintiff's causes of action, arguing that the delay in the plaintiff initiating this action after the passage of the local law results in undue prejudice to the defendants and the voters of Monroe County. The Court, in ruling on the plaintiff's application for a temporary restraining order and preliminary injunction to prevent the primary election to proceed under the map adopted by the local law, had previously held that the doctrine of laches would bar the requested relief. In so holding, the Court noted the significant prejudice to the voters of Monroe County should a second primary election be ordered and held that this prejudice-caused by plaintiff's delay in initiating the present action — warranted denial of his request due, in part, to the doctrine of laches.
See the Decision and Order of the Hon. Daniel J. Doyle dated April 14, 2023 (NYSCEF Docket # 29).
However, although the doctrine of laches operated to prevent the Court from granting the application for a TRO to delay the primary election (and the additional relief requested by plaintiff that new maps be adopted), it does not operate to prevent plaintiff from pursuing his underlying causes of action to invalidate the map adopted by the local law. Allowing the plaintiff to proceed would not result in any prejudice to the defendants or the voters of Monroe County. Should plaintiff prevail and a new map were ordered by this Court to be adopted, that map would become effective for future legislature elections. (See Nichols v. Hochul , 206 A.D.3d 463, 464, 170 N.Y.S.3d 70 appeal dismissed, 38 N.Y.3d 1053, 171 N.Y.S.3d 41, 190 N.E.3d 1173 [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 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 N.Y. 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] )."
Thus, the defendants’ motion to dismiss the complaint on the ground of laches must be denied.
Plaintiff Lacks Standing As to the 1st, 2nd and 3rd Causes of Action
"Where, as here, the motion is one to dismiss the complaint pursuant to CPLR 3211(a)(3) for lack of standing, "the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied" ( Deutsche Bank Trust Co. Ams. v. Vitellas , 131 A.D.3d 52, 59—60, 13 N.Y.S.3d 163 ; see U.S. Bank Trust, N.A. v. Carter , 164 A.D.3d 539, 542, 83 N.Y.S.3d 1 ; U.S. Bank, N.A. v. Deshuk—Flores , 163 A.D.3d 603, 605, 81 N.Y.S.3d 77 ; Mariners Atl. Portfolio, LLC v. Hector , 159 A.D.3d 686, 687, 69 N.Y.S.3d 502 ; OneWest Bank, FSB v. Berino , 158 A.D.3d 811, 71 N.Y.S.3d 563 ; HSBC Bank USA, N.A. v. Ehrenthal , 158 A.D.3d 668, 670, 71 N.Y.S.3d 542 )." ( Phoenix Grantor Tr. v. Exclusive Hosp. , LLC, 172 A.D.3d 923, 925—26, 101 N.Y.S.3d 175 [2nd Dept. 2019].) The defendants have established that the plaintiff does not have standing to support the 1st, 2nd, and 3rd causes of action in the amended complaint. Thus, the defendants’ motion to dismiss must be granted on this ground.
Plaintiff does not have standing to support the first three causes of action in the amended 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 amended 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, 262-64, 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 (which he does not delineate) and specifically claims LDs 11 and 18 suffer from that infirmity, his amended 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 .)
Plaintiff- in his memorandum of law — asserts that as he has alleged that LD 11 and LD 18 are an "example of the Legislature "packing" Democrats in as few districts as possible (NYSCEF Doc. No. 34, ¶ 33)" that these allegations are "sufficient to permit him to prove that there are additional districts — including his own- that have been packed." However, Plaintiff, although he filed an amended complaint, did not specifically allege that his own district was "packed". A notable omission. Presumably Plaintiff would have added an additional allegation in his amended complaint that the district in which he lived was "packed" and thus that he had the requisite standing to challenge the local law under MHRL § 34(4)(e) if he did live in district Plaintiff can plausibly alleged was "packed". Since Plaintiff did not do so, the only supportable inference is that Plaintiff does not live in a "packed" district and thus does not have standing.
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., Inc. v. Walkley , 38 N.Y.2d 6, 9, 377 N.Y.S.2d 451, 339 N.E.2d 865 ). 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 ). 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. v. County of Suffolk , 77 N.Y.2d 761, 772, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [citation omitted])." ( Silver v. Pataki , 96 N.Y.2d 532, 539, 730 N.Y.S.2d 482, 755 N.E.2d 842 [2001].) Although the Court of Appeals has stated that the principles of standing should not be overly restrictive (see Matter of Sun-Brite Car Wash, Inc. 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. )
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. ( Parietti v. Day , 215 A.D.3d 897, 188 N.Y.S.3d 548 [2nd Dept.]leave to appeal denied, 39 N.Y.3d 1152, 190 N.Y.S.3d 9, 211 N.E.3d 99 [2023].)
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, these constitutional provisions do not apply to establish standing in challenges to local laws which implement maps for county legislative districts. The terms are clearly referring to the New York State Legislature.
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].)
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].)
"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 therof 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. This argument was raised and rejected by the Appellate Division, Second Department in Parietti v. Day, supra .
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, 81 N.E. 124 [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.
"Pursuant to the New York State Constitution, "[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" (NY Const, art III, § 5 ). Contrary to the petitioner's contention, this provision is inapplicable to this matter because it only applies to an apportionment by the State Legislature or a body acting on its behalf or in relation to state legislative or congressional districts, such as the New York State Independent Redistricting Commission. Moreover, Municipal Home Rule Law § 34 (4), which subjects redistricting plans adopted by charter counties "to federal and state constitutional requirements," does not render the judicial review provision of NY Const, art III, § 5, applicable to such redistricting plans. The terms of the statute relate to the redistricting process itself, a conclusion supported by the legislative history (see Bill Jacket, L 2021, ch 516)." (Parietti v. Day , 215 A.D.3d at 899—900, 188 N.Y.S.3d 548.)
Additionally, 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].) 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, 81 N.E. 124 [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, 106 N.E. 675 [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.
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 6) 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.
Finally, the Plaintiff's allegations of "associational standing" are without merit. Associational standing provides standing to an organization or association to maintain an action or proceeding on behalf of its membership — provided one of its members would have standing to sue. "To establish standing, an associational or organizational group, ..., "must show that at least one of its members would have standing to sue, that it is representative of the organizational purposes it asserts and that the case would not require the participation of individual members" ( New York State Assn. of Nurse Anesthetists v. Novello , 2 N.Y.3d 207, 211, 778 N.Y.S.2d 123, 810 N.E.2d 405 [2004] ). Pursuant to the first requirement of the associational standing test, a petitioner must demonstrate an injury-in-fact to one or more of its members and that the injury falls "within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted" ( id. at 211, 778 N.Y.S.2d 123, 810 N.E.2d 405 ; see Society of Plastics Indus., Inc. v. County of Suffolk , 77 N.Y.2d 761, 772-773, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991] )." ( New York State Psychiatric Ass'n, Inc. v. Mills , 29 A.D.3d 1058, 1059, 814 N.Y.S.2d 382 [3rd Dept. 2006].)
See amended complaint at ¶ 78.
Here, plaintiff is not an "organization" or an "association" and his membership in the Monroe County Democratic Committee and Party do not confer upon him standing under the associational standing principle.
Since Plaintiff has failed to establish standing to support the first three causes of action in the amended complaint, the defendants’ motion to dismiss must be granted as to those causes of action.
Plaintiff has failed to state a cause of action as to the 4th cause of action
In his amended complaint plaintiff alleges in his 4th cause of action violation of his constitutional rights of freedom of association and free speech under the First Amendment to the United State Constitution and Article I, §§ 8 and 9 of the New York Constitution. Defendants move pursuant to CPLR § 3211(a)(7) to dismiss this cause of action arguing that the plaintiff failed to particularize his cause of action.
The Court agrees.
The entirety of plaintiff's claims relevant to the 4th cause of action are as follows:
FOURTH CAUSE OF ACTION
[VIOLATION OF CONSTITUTIONAL RIGHTS TO FREEDOM OF ASSOCIATION]
73. Plaintiff repeats and re-alleges paragraphs 1-72 as if fully set forth herein.
74. The current map violates plaintiff's fundamental rights of association and free speech secured to political parties and individuals by the First Amendment to the Constitution of the United
States and Article I, §§ 8 and 9 of the New York State Constitution.
75. Plaintiff has suffered an unjustifiable burden on his associational rights guaranteed him under the First Amendment to the Constitution of the United States and Article I, §§ 8 and 9 of the New York State Constitution.
76. The right of freedom of speech and freedom of association of Monroe County electors who are members of the Democratic Party. [sic ] has been intentionally and impermissibly burdened.
Plaintiff does not allege how his freedom of speech and freedom of association have been abridged. The complaint is devoid of any factual allegations which would support the legal conclusions plead. "... [B]are legal conclusions in a pleading are not entitled to consideration when assessing a motion to dismiss under CPLR 3211(a)(7) (see Myers v. Schneiderman , 30 N.Y.3d 1, 3, 62 N.Y.S.3d 838, 85 N.E.3d 57 [2017] ; Connaughton v. Chipotle Mexican Grill, Inc. , 29 N.Y.3d 137, 141, 53 N.Y.S.3d 598, 75 N.E.3d 1159 [2017] ; Maas v. Cornell Univ. , 94 N.Y.2d 87, 91, 699 N.Y.S.2d 716, 721 N.E.2d 966 [1999] ; Rodriguez v. Jacoby & Meyers, LLP , 126 A.D.3d 1183, 1185, 3 N.Y.S.3d 793 [2015] ; Wiggins & Kopko, LLP v. Masson , 116 A.D.3d 1130, 1131—1132, 983 N.Y.S.2d 665 [2014] ). Indeed, such a motion "is useful in disposing of actions in which the plaintiff ... has identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action" (John R. Higgitt, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:22)." ( Mid-Hudson Valley Fed. Credit Union v. Quartararo & Lois, PLLC , 155 A.D.3d 1218, 1221, 64 N.Y.S.3d 389 [3rd Dept. 2017]aff'd , 31 N.Y.3d 1090, 78 N.Y.S.3d 703, 103 N.E.3d 774 [2018].)
Plaintiff's reliance upon the facts he previously plead in support of the first three causes of action do not provide the necessary notice and particularity of his 4th cause of action as required by CPLR § 3013. Those facts set forth the plaintiff's theory as to how the map adopted under the local law violates several provisions of MHRL § 34(4) - but those allegations (contained in paragraphs 1 through 72) do not contain any facts which explain how plaintiff's free speech or associational rights have been violated by adoption of the legislative redistricting map. From plaintiff's complaint it is impossible to deduce plaintiff's theory as to the harm to his free speech and associational rights suffered due to the legislative redistricting map adopted under the local law.
Plaintiff argues that his 1st Amendment claims "are explicitly connected to- and based on- all the allegations in our complaint, and specifically the allegations about partisan gerrymandering", and argues that "[t]his cause of action is specifically recognized and described by the United States Supreme Court as a valid claim" citing ( Rucho v. Common Cause, ––– U.S. ––––; 139 S.Ct. 2484, 204 L.Ed.2d 931 [2019] ) and ( Gill v. Whitford, 585 U.S. ––––; 138 S.Ct. 1916, 201 L.Ed.2d 313 [2018] ). However, although both Rucho and Gill mention the possibility of a cause of action predicated upon infringement of the constitutional right of association and free speech due to overly partisan legislative redistricting map, here plaintiff fails to allege facts which would support that possible cause of action. Gill observed that "associational harms" may be suffered due to partisan gerrymandering that resulted in "difficulties fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office (not to mention eventually accomplishing their policy objectives)". Plaintiff fails to allege any facts that he, or the Monroe County Democratic Party, suffered any of these harms to their associational or free speech rights guaranteed under the 1st Amendment to the US Constitution and Article I of the New York State Constitution. Indeed, plaintiff fails to allege any associational harms at all due to the alleged gerrymandered map.
In Rucho the dissenting opinion described the "associational harm" as: "Yet partisan gerrymanders subject certain voters to "disfavored treatment"—again, counting their votes for less—precisely because of "their voting history [and] their expression of political views." Vieth v. Jubelirer, 541 U.S. 267, 314, 124 S.Ct. 1769, 158 L.Ed.2d 546 [2004] (opinion of Kennedy, J.). And added to that strictly personal harm is an associational one. Representative democracy is "unimaginable without the ability of citizens to band together in [support of] candidates who espouse their political views." California Democratic Party v. Jones , 530 U.S. 567, 574, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000). By diluting the votes of certain citizens, the State frustrates their efforts to translate those affiliations into political effectiveness. See Gill , 585 U.S. at ––––, 138 S.Ct. at 1938 (KAGAN, J., concurring) ("Members of the disfavored party[,] deprived of their natural political strength[,] may face difficulties fundraising, registering voters, [and] eventually accomplishing their policy objectives"). In both those ways, partisan gerrymanders of the kind we confront here undermine the protections of "democracy embodied in the First Amendment." Elrod v. Burns , 427 U.S. 347, 357, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (internal quotation marks omitted)." (Rucho v. Common Cause , 139 S. Ct. 2484, 2514 [2019].)
In Gill the concurring opinion recognized the possibility of an "associational harm" due to partisan gerrymandering that could potentially impact members of the "disfavored party", providing as an example of possible harms: "Members of the "disfavored party" in the State, id. , at 315, 124 S.Ct. 1769 deprived of their natural political strength by a partisan gerrymander, may face difficulties fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office (not to mention eventually accomplishing their policy objectives). See Anderson v. Celebrezze , 460 U.S. 780, 791—792, and n. 12, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) (concluding that similar harms inflicted by a state election law amounted to a "burden imposed on ... associational rights"). And what is true for party members may be doubly true for party officials and triply true for the party itself (or for related organizations). Cf. California Democratic Party, 530 U.S. at 586, 120 S.Ct. 2402 (holding that a state law violated state political parties’ First Amendment rights of association). By placing a state party at an enduring electoral disadvantage, the gerrymander weakens its capacity to perform all its functions." (Gill v. Whitford , 138 S. Ct. 1916, 1938 [2018].)
The majority opinion in Rucho casts doubt upon the validity of an associational claim brought under the 1st Amendment. As the majority opinion observed: "To begin, there are no restrictions on speech, association, or any other First Amendment activities in the districting plans at issue. The plaintiffs are free to engage in those activities no matter what the effect of a plan may be on their district." (Rucho v. Common Cause , 139 S. Ct. at 2504.) Ultimately the Rucho majority opinion held that these claims are not justiciable. As the Court is dismissing the plaintiff's complaint it does not address an argument that these claims would be justiciable in New York courts as violative of the associational rights afforded to the plaintiff under the New York Constitution.
Thus, the defendants’ motion to dismiss the 4th cause of action is granted. ( CPLR § 3211 and CPLR § 3013.)
Based upon the foregoing, the papers submitted, and the oral argument of the application on July 27, 2023, it is hereby
ORDERED, that the defendants’ motion to dismiss the complaint is GRANTED; 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.