SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DANIEL MARKS COHEN, et al.
)
)
)
Plaintiffs/Petitioners,
)
)
v.
)
)
)
THE NEW YORK STATE LEGISLATIVE
)
TASK FORCE ON DEMOGRAPHIC
)
RESEARCH AND REAPPORTIONMENT, et al. )
)
Defendants/Respondents.
)
)
Index No. 12-101026
MOTION TODISMISS UNDER
CPLR §§ 3211(a)(2) & (7) FOR
LACK OF JURISDICTION AND
FAILURE TO STATE A CLAIM
Defendants/Respondents Michael F. Nozzolio and John J. McEneny respectfully move
this Court, pursuant to CPLR § 3211(a), to dismiss Plaintiffs’ Complaint. Plaintiffs’ own
pleading demonstrates two independent reasons why this suit should be dismissed. First, the
Court lacks subject matter jurisdiction because Plaintiffs have failed to present any ripe
controversy for this Court’s resolution. The gravamen of Plaintiffs’ Complaint is their allegation
that LATFOR’s “proposed 63-district Senate plan” violates the New York Constitution. Compl.
¶ 15. But LATFOR’s proposal has no legal force or effect, and an increase in the size of the
Senate will occur only if the Legislature enacts it and the Governor signs it into law. See id.
And even Plaintiffs allege that it is “more than plausible” that the Legislature and the Governor
will decline to enact LATFOR’s proposal. Id. Thus, this Court has no subject matter jurisdiction
because Plaintiffs’ suit presents no case or controversy, is nonjusticiable, and proposes that this
Court render an advisory opinion. For this reason, the Court should dismiss it in its entirety. See
1
CPLR § 3211(a)(2) (directing dismissal where “the court has not jurisdiction of the subject
matter of the cause of action”).
Second, in the alternative, and at a minimum, the Court should dismiss Plaintiffs’ Second
Cause of Action. CPLR Article 78 provides for judicial review of final administrative action, not
of proposed legislative action. It therefore does not grant any Plaintiff a right of action against
any Defendant in this suit. See id. § 3211(a)(7) (directing dismissal where “the pleading fails to
state a cause of action”).
BACKGROUND
A.
LATFOR And Senate Size Recommendation
The Legislature created LATFOR in 1978 “to assist [it] in the performance of its
[redistricting] responsibilities and in the conduct of legislative research projects relating thereto.”
N.Y. Leg. Law § 83-m(1)(c). As Plaintiffs acknowledge, LATFOR is a research and advisory
task force like “a legislative committee” that “recommend[s] to the Legislature” a plan “for each
decennial reapportionment of the New York’s Congressional, Senate, and Assembly districts.”
Compl. ¶ 30 (emphasis added); see also N.Y. Leg. Law § 83-m. LATFOR’s recommendations
have no legal force or effect; it remains the province solely of the Legislature to enact a
redistricting plan subject to the Governor’s veto. See Compl. ¶ 15; N.Y. Const. art III, §§ 4–5;
N.Y. Leg. Law § 83-m; Rodriguez v. Pataki, 308 F. Supp. 2d 346, 354–58 (S.D.N.Y. 2004)
(discussing LATFOR’s role and the Legislature’s enactment of redistricting plans in 2002).
LATFOR’s membership consists of four legislators and two non-legislators appointed by
the Temporary President of the Senate, the Speaker of the Assembly, and the Senate or
Assembly Minority Leaders. See N.Y. Leg. Law § 83-m(2); Compl. ¶¶ 29–32; The New York
Legislative Task Force On Demographic Research And Reapportionment, available at
http://www.latfor.state.ny.us (last visited February 10, 2012). Defendants Nozzolio and
2
McEneny are members and co-chairmen of LATFOR. See Compl. ¶¶ 31–32. Plaintiff Senator
Martin Malave Dilan also is a member of LATFOR. See id. ¶ 29.
The 2010 Census prompted LATFOR to begin its work on a proposal for redrawing New
York’s Assembly, Senate, and Congressional districts. See id. ¶¶ 13, 30. Between July and
November 2011, LATFOR held fourteen public hearings and received extensive public input
regarding redistricting issues across the State. See id. ¶ 13. LATFOR announced its proposal,
inter alia, to increase the Senate to 63 seats on January 6, 2012. See id. ¶ 13.
B.
Plaintiffs’ Suit
Plaintiffs filed this suit on January 31, 2012, after LATFOR “proposed [its] 63-district
Senate plan.” Compl. ¶ 15. Plaintiffs do not allege that the Legislature has enacted, or that the
Governor has signed into law, LATFOR’s proposal. In fact, Plaintiffs assert that “the earliest a
plan could be passed and sent to the Governor would be late February.” Id. Plaintiffs, moreover,
concede that it “is more than plausible” that the Governor may veto LATFOR’s recommendation
“given his repeated public vows not to sign a partisan redistricting bill.” Id.
Plaintiffs do not allege that LATFOR’s “proposed 63-district Senate plan” has any legal
force or effect, or that it inflicts any harm on them. Id. In fact, Plaintiffs do not identify any
specific harm they would suffer if the Senate were increased to 63 seats. See id. Instead,
Plaintiffs indicate that LATFOR has begun to hold public hearings regarding its proposal, and
seek to secure this Court’s advisory opinion regarding the proposal’s constitutionality for
potential use in the event that some future “reapportionment impasse would have to be resolved
by a special master, perhaps in federal court.” Id. ¶ 15.
Plaintiffs purport to plead two causes of action seeking a declaration that “the New York
Constitution forbids New York from increasing the size of its Senate to 63 seats.” Id. ¶¶ a–b.
3
Plaintiffs’ First Cause of Action seeks a declaratory judgment pursuant to CPLR § 3001. See id.
¶ 149. Plaintiffs’ Second Cause of Action seeks an order under CPLR Article 78. See id. ¶ 151.
ARGUMENT
Plaintiffs’ Complaint makes clear that the Court should dismiss this suit as
unsubstantiated speculation for two independent reasons. First, Plaintiffs’ claims are not ripe
because the Legislature and the Governor may never enact LATFOR’s 63-seat Senate proposal.
Second, Plaintiffs’ Second Cause of Action fails to state a claim upon which relief may be
granted because CPLR Article 78 does not authorize judicial review of proposed legislative
action.
I.
PLAINTIFF’S SUIT IS NOT RIPE
This Court should dismiss Plaintiffs’ suit because their challenge to LATFOR’s
“proposed 63-district Senate plan” that the Legislature may never enact, Compl. ¶ 15, fails to
present a ripe, justiciable controversy.
A.
Plaintiffs’ Claims Rest On A Hypothetical Enactment Of Proposed
Legislation That May Never Occur
It is a fundamental principle of Anglo-American jurisprudence that courts do not decide
disputes that present no “concrete case or controversy.” Thomas v. Union Carbide Agric. Prods.
Co., 473 U.S. 568, 579 (1985). Thus, a declaratory judgment action under New York law
“requires an actual controversy” with a “justiciable” dispute. Long Island Lighting Co. v. Allianz
Underwriters Ins. Co., 35 A.D.3d 253, 253 (1st Dep’t 2006); see also CPLR § 3001 (authorizing
a declaratory judgment action to resolve “a justiciable controversy”); Fragoso v. Romano, 268
A.D.2d 457, 457 (2d Dep’t 2000) (“In order to maintain an action for a declaratory judgment, a
party must present a concrete, actual controversy for adjudication.”). New York courts have no
jurisdiction over cases presenting an abstract or “hypothetical” issue. In the Matter of Ideal Mut.
4
Ins. Co., 174 A.D.2d 420, 421 (1st Dep’t 1991) (citing 3 Weinstein-Korn-Miller, NY Civ Prac
¶3001.03); see also Spitzer v. Schussel, 48 A.D.3d 233, 234 (1st Dep’t 2008) (“The hypothetical
possibility that a lawsuit might be filed is not sufficiently immediate and real to constitute a
justiciable controversy.”); Fragoso, 268 A.D.2d at 457. This rule flows from the “fundamental”
principle that “the function of courts is to determine controversies between litigants,” not to issue
advisory opinions that “can have no immediate effect and may never resolve anything.” New
York Public Interest Res. Group v. Carey, 42 N.Y.2d 527, 529–31 (1977).
A request for a declaratory judgment is not ripe if it rests on the occurrence of a future
event that “is beyond the control of the parties and may never occur.” Id. at 531. Of particular
relevance here, “where the injury to the plaintiff [is] contingent upon the enactment of legislation
in the future, the dispute [is] not justiciable.” Cuomo v. Long Island Lighting Co., 71 N.Y.2d
349, 354 (1988) (emphasis added); see also Carey, 42 N.Y.2d at 531; Am. Ins. Ass’n v. Chu, 64
N.Y.2d 379, 385–86 (1985).
The Court of Appeals’ decision in Carey is instructive. There, a group of taxpayers
sought a declaration that a statute authorizing the creation of State debt in a certain amount was
unconstitutional. See 42 N.Y.2d at 528–29. That statute, however, was “not in effect and
[might] never go into effect unless approved by the voters in the [upcoming] general election.”
Id. at 528. The Court of Appeals held that “[u]ntil [a proposed] statute or ordinance is passed, a
declaratory judgment would be premature.” Id. at 531. It therefore dismissed the suit as not ripe
because “if the voters do not approve the proposition all determinations which the courts have
made in the case would be merely of abstract interest and moot.” Id.
The Court of Appeals reached a similar decision in American Insurance Association v.
Chu. See 64 N.Y.2d at 382–86. The plaintiffs in that case, three insurance company trade
5
associations, brought a constitutional challenge to the statutory scheme for funding various
workers’ compensation trusts. See id. The plaintiffs contended that their challenge to the
scheme was justiciable because, while the trusts contained sufficient funds to pay all current
obligations, “a subsequent Legislature” might underfund the trusts by “omit[ting] the required
appropriation for a given year and repeal[ing]” the scheme’s mandatory appropriation provision.
Id. at 386. Confirming that a “justiciable controversy” requires “present, rather than
hypothetical, contingent or remote, prejudice to plaintiffs,” id. at 383, the Court of Appeals held
that the possibility of future inadequate appropriations “is just such a future event beyond the
control of the parties to the action which may never occur as [to] put [the suit] beyond the reach
of a declaratory judgment,” id. at 385.
Plaintiffs’ suit presents precisely the kind of “hypothetical, contingent or remote” injury
“beyond the reach of a declaratory judgment.” Id. at 383–85. Plaintiffs complain that LATFOR
has “proposed [a] 63-district Senate plan,” but they recognize that this proposal has no legal
force or effect unless the Legislature enacts it and the Governor signs it into law. Compl. ¶ 15.
Plaintiffs have failed to identify any injury that LATFOR’s proposal presently inflicts on them,
see id., and any injury that they face from a 63-seat Senate is “contingent upon the enactment of”
such a proposal “in the future.” Long Island Lighting, 71 N.Y.2d at 354. Plaintiffs themselves
allege that the nonoccurrence of this contingency is “more than plausible” because the
Legislature and the Governor may never adopt LATFOR’s proposal. Compl. ¶ 15. Plaintiffs’
challenge thus rests on “a future event beyond the control of the parties to the action which may
never occur” and is not ripe. Chu, 64 N.Y.2d at 385, 476 N.E.2d at 639; see also Carey, 42
N.Y.2d at 531; Long Island Lighting, 71 N.Y.2d at 354.
6
B.
Plaintiffs’ Various Allegations Do Not Render Their Suit Ripe
Plaintiffs attempt to gloss over their failure to plead any actual injury or judicially
cognizable controversy by offering three arguments that their suit is ripe, none of which is
persuasive. First, Plaintiffs argue that waiting until the Legislature and the Governor decide
whether to act on LATFOR’s proposal “would be far too late to begin litigating this critical
threshold issue.” Compl. ¶ 15. That argument is fatally flawed as both a legal and factual
matter. First, even if there would be little time to adjudicate Plaintiffs’ suit if and when it ever
becomes ripe, this does not alter the fundamental rule that New York courts have no jurisdiction
to issue advisory opinions that “can have no immediate effect and may never resolve anything.”
Carey, 42 N.Y.2d at 531. New York courts cannot exceed their jurisdiction to issue advisory
opinions about speculative future events regardless of whether there will be a time crunch if and
when such events ripen into a justiciable controversy over which they do have jurisdiction.
Moreover, there will not be any such time crunch precluding effective adjudication of this
suit. The State Senate primary election will be held in September, approximately seven months
from now. See N.Y. Elec. Law § 8-100(a). Plaintiffs themselves assert that “there are no
genuine issues of material fact and that this case can and should be resolved on summary
judgment” in a compressed timeframe. Heckler Aff. ¶ 10 (Ex. B). Thus, there will be plenty of
time to resolve this legal dispute prior to any elections. Courts in prior redistricting cases in this
and other states have recognized that even fact-intensive statutory and constitutional challenges
do not become ripe until approximately four months before the next primaries. Rodriguez v.
Pataki, 207 F. Supp. 2d 123, 125 (S.D.N.Y. 2002); Flateau v. Anderson, 537 F. Supp. 257, 266
(S.D.N.Y. 1982) (according New York Legislature until approximately five months before the
primaries to adopt a redistricting plan); Smith v. Clark, 189 F. Supp. 2d 503, 504–05 (S.D. Miss.
2002) (beginning to draft redistricting plan less than two months before deadline to declare
7
candidacy), aff’d sub nom. Branch v. Smith, 538 U.S. 254, 262 (2003) (“there is no suggestion
that the District Court failed to allow the state court adequate opportunity to develop a
redistricting plan”). New York courts have easily completed judicial review of an entire
redistricting plan in less than two months. See Wolpoff v. Cuomo, 80 N.Y.2d 70, 75–80 (N.Y.
1992). If it ever becomes ripe, Plaintiffs’ purely legal, single-issue challenge to LATFOR’s
proposed 63-district Senate Plan could be resolved quickly—as Plaintiffs themselves recognize.
See Heckler Aff. ¶ 10. Thus, there is no reason to create a lawless “exception” to the plain limits
on this Court’s jurisdiction in order to entertain Plaintiffs’ suit before it is ripe.
Second, Plaintiffs’ allegation that the date of the State Senate primary “is still undecided,
and may be as early as June,” Heckler Aff. ¶ 4; see also Dilan Aff. ¶ 3 (Ex. C), is incorrect, and
in all events underscores that Plaintiffs’ suit rests on “hypothetical, contingent or remote” future
events “beyond the reach of a declaratory judgment,” Chu, 64 N.Y.2d at 385. The date of New
York’s state legislative primaries is decided and set for September. See N.Y. Elec. Law § 8100(a). Plaintiffs apparently refer to the fact that a federal district court has scheduled New
York’s federal legislative (congressional) primaries for June—but that court had no jurisdiction
over state legislative primaries and did nothing to alter their September date. Order, United
States v. State of New York, No. 10-cv-01214 (N.D.N.Y. Jan. 27, 2012) (Ex. D). Thus, Plaintiffs
seek this Court’s immediate intervention based on a series of hypothetical legislative actions: a
repeal of the current September primary date, its replacement with a June date, and the
Legislature’s adoption of LATFOR’s 63-seat Senate proposal. “The possibility of that
combination occurring, however, is just such a future event beyond the control of the parties”
that renders this suit nonjusticiable. Chu, 64 N.Y.2d at 385. And in all events, even if the Senate
8
primary were scheduled for June, Plaintiffs’ purely legal, single-issue challenge could be
resolved in a timely manner.
Finally, Plaintiffs’ allegation that the Governor may veto the plan and that a hypothetical
“reapportionment impasse would have to be resolved by a special master, perhaps in federal
court,” Compl. ¶ 15, only lends further support to the conclusion that Plaintiffs’ suit rests on the
occurrence of “future event[s] beyond the control of the parties,” Chu, 64 N.Y.2d at 385.
Plaintiffs’ feared “reapportionment impasse” will occur only if the Governor vetoes LATFOR’s
proposal and the political branches fail to adopt a reapportionment plan in time to hold the
September primaries and a court decides to intervene and that court appoints a special master
and the special master considers a 63-seat Senate plan. See Compl. ¶ 15. If Plaintiffs believe a
63-seat plan is unconstitutional, they will have every opportunity to make this argument to
whatever court is resolving their hypothesized “impasse” suit.
Indeed, Plaintiffs’ reliance on such a hypothetical sequence of contingencies vividly
confirms that their suit is not ripe for this Court’s intervention. See Chu, 64 N.Y.2d at 385. At
bottom, Plaintiffs seek nothing more than an advisory opinion, for possible use in a future
dispute, that “can have no immediate effect and may never resolve anything,” Carey, 42 N.Y.2d
at 531; see also Long Island Lighting, 71 N.Y.2d at 356 (“New York courts are not adjuncts or
advisors of other agencies of government, and . . . the traditional judicial function may be
destroyed by turning the power to decide into a pallid opportunity to consult and recommend”).
The Court therefore should dismiss Plaintiffs’ Complaint.
II.
PLAINTIFFS’ SECOND CAUSE OF ACTION FAILS TO STATE A CLAIM
UPON WHICH RELIEF CAN BE GRANTED
Even if Plaintiffs’ suit were ripe, the Court should dismiss Plaintiffs Second Cause of
Action for the additional reason that Plaintiffs do not have any claim against any Defendant
9
under CPLR Article 78. First, New York law is clear that “an article 78 proceeding is not the
proper vehicle to challenge the constitutionality of legislative enactments,” Press v. Monroe
County, 50 N.Y.2d 695, 702 (1980), or “to challenge a legislative act,” New York City Health &
Hospital Corp. v. McBarrette, 84 N.Y.2d 194, 203-204 (1994) Foley v. Masiello, 833 N.Y.S. 2d
342, 343 (4th Dep’t 2007). Indeed, Article 78 provides for judicial review of final actions
undertaken by a “body or officer,” such as a “court, tribunal, board, corporation, officer, or other
person, or aggregation of persons,” in an administrative capacity. CPLR § 7802(a). It therefore
provides no cause of action against LATFOR, a “legislative committee,” or its members carrying
out a legislative function. Compl. ¶ 30.
Second, even if Article 78 could be used to challenge legislative activity, it authorizes
judicial review only of “final” action. CPLR § 7801(1) (emphasis added). An action is “final”
under Article 78 where it “impose[s] an obligation, den[ies] a right or fix[es] some legal
relationship.” Gordon v. Rush, 100 N.Y.2d 236, 242 (2003). That test is satisfied only where
“the decisionmaker has arrived at a definitive position on the issue that inflicts an actual,
concrete injury.” Id. Here, LATFOR merely has “proposed [a] 63-district Senate plan,” and the
proposal does not impose any obligation, deny any right, fix any legal relationship, or inflict any
injury. Compl. ¶ 15; see Gordon, 100 N.Y.2d at 242. In fact, as Plaintiffs recognize, that
proposal will become effective, if at all, only if the Legislature and the Governor adopt it—a
contingency whose non-occurrence Plaintiffs themselves allege is “more than plausible.”
Compl. ¶ 15. LATFOR’s proposal therefore is not final under Article 78, and the Court should
dismiss Plaintiffs’ Second Cause of Action. See Gordon, 100 N.Y.2d at 242.
CONCLUSION
For the foregoing reasons, the Court should dismiss Plaintiffs’ Complaint.
10
Dated: February 16, 2012
Michael A. Carvin
John M. Gore
JONES DAY
51 Louisiana Ave., N.W.
Washington, D.C. 20001
202/879-3930
Respectfully submitted,
Todd R. Geremia
JONES DAY
222 East 41st Street
New York, NY 10017-6702
212/326-3939
David Lewis
Lewis & FIORE
222 East 41st Street
New York, NY 10017-6702
212/285-2290
Attorneys For Defendants/Respondent Michael
F. Nozzolio
____________________
C. Daniel Chill
GRAUBARD MILLER
The Chrysler Building
405 Lexington Avenue, 19th Floor
New York, NY 10174
212/818-8800
Attorney for Defendant/Respondent John J.
McEneny
11
AFFIRMATION OF SERVICE
I, David Lewis, an attorney admitted to practice in the State of New York and not a party
to this action, hereby affirm under penalties of perjury that the foregoing Motion to Dismiss was
served by overnight mail and e-mail on February 16, 2012, upon the following counsel for the
plaintiffs.
Eric Hecker
John R. Cuti
CUTI HECKER WANG LLP
305 Broadway, Suite 607
New York, NY 10007
Dated: February 16, 2012
___________
David Lewis
12