Fossella v. Adams

206 N.Y.S.3d 611

Vito J. FOSSELLA, et al., respondents,

v.Eric ADAMS, etc., et al., defendants-appellants,Hina Naveed, et al., defendants-intervenors-appellants, et at, defendant, et al., defendant-intervenor.

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 23, 2023

February 21, 2024

APPEAL by the defendants Eric Adams, as Mayor of the City of New York, and the City Council of the City of New York, and separate appeal by the defendants-intervenors Hina Naveed, Carlos Vargas Galindo,. Abraham Paulos, Emili Prado, Eva Santos Veloz, Melissa John, Angel Salazar, and Jan Ezra Undag, in an action, inter alia, for declaratory and injunctive relief, from an order of the Supreme Court (Ralph J. Porzio, J.), dated June 27, 2022, and entered in Richmond County. The order (1) denied the motion of the defendants Eric Adams, as Mayor of the City of New York, and the City Council of the City of New York, for summary judgment dismissing the complaint insofar as asserted against them and, in effect, declaring that Local Law No. 11 (2022) of City of New York is lawful and valid, (2) denied the defendants-intervenors’ motion, among other things, for summary judgment dismissing the complaint insofar as asserted against them and, in effect, declaring that Local Law No. 11 (2022) of City of New York is lawful and valid, and (3) granted the plaintiffs’ motion for summary judgment declaring Local Law No. 11 (2022) of City of New York null and void on the grounds that it violates the New York State Constitution, the New York State Election Law, and the Municipal Home Rule Law, and permanently enjoining the implementation or enforcement of that law.

Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Richard Dearing, Devin Slack, and Mackenzie Fillow of counsel), for defendants-appellants.

Latino Justice PRLDEF, New York, NY (Cesar Z. Ruiz, Ghita Schwarz, Fulvia Vargas–De Leon, Jackson Chin, and Lourdes Rosado of counsel), for defendants—intervenors-appellants.

O’Connell and Aronowitz, P.C., Albany, NY (Cornelius D. Murray and Michael Y. Hawrylchak of counsel), for respondents. New York Civil Liberties Union Foundation, New York, NY (Veronica R. Salama, Perry Grossman, and Molly K. Biklen), amicus curiae pro se.

White & Case LLP, New York, NY (Tripp Odom of counsel), for amici curiae New York Immigration Coalition and United Neighborhood Houses.

Hogan Lovells U.S. LLP, New York, NY (Peter Bautz and Elizabeth Femia of counsel), for amicus curiae Common Cause New York.

Muslim Advocates, Washington, D.C. (Reem Subei, pro hac vice, Christopher Godshall–Bennett, pro hac vice, and Stephanie Rose Correa of counsel), amicus curiae pro se and for amici curiae Muslim Bar Association of New York, Muslim Community Network, UndocuBlack Network, OneAmerica, Islamophobia Studies Center, Black Leadership and Action Coalition, Jetpac, and National Lawyers’ Guild, Rochester Chapter.

Morrison & Foerster LLP, New York, NY (Jessica Kaufman, Eric D. Lawson, and Lily Westergaard of counsel), for amicus curiae Ron Hayduk.

ANGELA G. IANNACCI, J.P., PAUL WOOTEN, HELEN VOUTSINAS, LILLIAN WAN, JJ.

OPINION & ORDER

WOOTEN, J.

This case concerns the validity of Local Law No. 11 (2022) of City of New York, which created a new class of voters eligible to vote in municipal elections consisting of individuals who are not United States citizens and who meet certain enumerated criteria. We determine that this local law was enacted in violation of the New York State Constitution and Municipal Home Rule Law, and thus, must be declared null and void.

I. BACKGROUND

On December 9, 2021, the City Council of the City of New York (hereinafter the City Council) voted to adopt a bill designated as Intro 1867–A, and entitled "A Local Law to amend the New York city charter, in relation to allowing lawful permanent residents in New York city to vote in municipal elections " The local law created a new class of voters called "municipal voters" who would be entitled to vote in municipal elections for the offices of mayor, public advocate, comptroller, borough president, and council member. The law defines a "municipal voter" as "a person who is not a United States citizen on the date of the election on which he or she is voting," and who meets the following criteria: (1) "is either a lawful permanent resident or authorized to work in the United States"; (2) "is a resident of New York [C]ity and will have been such a resident for 30 consecutive days or longer by the date of such election"; and (3) "meets all qualifications for registering or pre-registering to vote under the election law, except for possessing United States citizenship, and who has registered or preregistered to vote with the board of elections in the city of New York under this chapter."

The bill was submitted to former Mayor Bill de Blasio, who declined to sign or veto the bill before leaving office at the end of 2021. Incoming Mayor Eric Adams (hereinafter the Mayor) then declined to sign or veto the bill within 30 days of its passage. Consequently, pursuant to section 37(b) of the New York City Charter, the bill was deemed adopted as Local Law No. 11 of 2022 of City of New York (hereinafter the Local Law). The Local Law was codified in the New York City Charter as the new Chapter 46–A, entitled "Voting by Lawful Permanent Residents and Persons Authorized to Work in the United States."

In January 2022, the plaintiffs commenced this action against the Mayor, the City Council, and another defendant, inter alia, for a judgment declaring that the Local Law is null and void on the founds that it violates the New York State Constitution, the New York State Election Law, and the Municipal Home Rule Law, and permanently enjoining the implementation or enforcement of the Local Law. The plaintiffs consist of (1) certain individuals registered to vote in the City of New York—Vito J. Fossella, Joseph Borrelli, Nicole Malliotakis, Veralia Malliotakis, Andrew Lanza, Michael Reilly, Michael Tannousis, Inna Vernikov, David Carr, Joann Ariola, Vickie Paladino, Robert Holden, Gerard Kassar, Michael Petrov, Wafik Habib, and Phillip Yan Hing Wong (hereinafter collectively the voter plaintiffs); (2) certain individuals who held or had recently been elected to public office—Vito J. Fossella, Joseph Borrelli, Nicole Malliotakis, Andrew Lanza, Michael Reilly, Michael Tannousis, Inna Vernikov, David Carr, Joann Ariola, Vickie Paladino, and Robert Holden (hereinafter collectively the officeholder plaintiffs); and (3) certain individuals and entities representing the Republican Party—Nicholas Langworthy, Gerard Kassar, the New York Republican State Committee, and the Republican National Committee (hereinafter collectively the political party plaintiffs).

The complaint alleged, among other things, that the City has approximately 5,000,000 active registered voters, that approximately 1,000,000 adults who are not U.S. citizens reside in the City, of which approximately 800,000 would be eligible to vote under the Local Law, and that noncitizens could potentially make up 15% or more of the electorate in future elections due to the Local Law, which is greater than the margin of victory in many municipal elections. Thus, the complaint alleged that the Local Law will "dramatically increas[e] the pool of eligible voters," which "will dilute, the votes of United States citizens," including the voter plaintiffs, and will "cause an abrupt and sizeable change to the makeup of the electorate, which will force the [ ]officeholder [p]laintiffs to change the way that they campaign for office," as well as require the political party plaintiffs to "adjust their strategies and how they allocate their resources to help elect Republicans in New York."

In the first cause of action, the complaint alleges that the Local Law violates the New York State Constitution, which provides that local government officers and legislative representatives must be elected by "the [P]eople" (N.Y. Const, art IX, § 1[a], [b]), defined as "[p]ersons entitled to vote as provided in section one of article two of this constitution" (id. § 3[d][3]), consisting exclusively of "citizen[s]" who meet certain criteria (N.Y. Const, art II, § 1). In the second cause of action, the complaint alleges that the Local Law violates, inter alia, New York State Election Law § 5–102(1), which provides that "[n]o person shall be qualified to register for and vote at any election unless he is a citizen of the United States." In the third cause of action, the complaint alleges that the Local Law violates Municipal Home Rule Law § 23(2)(e) because it was enacted without a public referendum.

Thereafter, certain noncitizen voters—Hina Naveed, Carlos Vargas Galindo, Abraham Paulos, Emili Prado, Eva Santos Veloz, Muhammad Shahidullah, Melissa John, Angel Salazar, and Jan Ezra Undag (hereinafter collectively the intervenors)—moved for leave to intervene as defendants in this action, and their motion was granted without opposition.

In May 2022, the Mayor and the City Council (hereinafter together the City defendants) moved for summary judgment dismissing the complaint insofar as asserted against them and, in effect, declaring that the Local Law is lawful and valid. In support of the motion, the City defendants argued, inter alia, that the Local Law did not violate the New York State Constitution as the reference to article II, section 1, in defining "people" (see N.Y. Const, art IX, § 3[d][3]), "was not an attempt to restrict the voting rights of individual voters, but rattier, to clarify and expand the constitutionally protected right granted to local governments to have local officers elected through direct democratic elections." The City defendants also contended that the Local Law did not violate New York State Election Law as Election Law § 1–102 provides that "[w]here a specific provision of law exists in any other law which is inconsistent with the provisions of this...