Harkenrider v. Hochul

204 A.D.3d 1366

167 N.Y.S.3d 659

In the Matter of Tim HARKENRIDER, Guy C. Brought, Lawrence Canning, Patricia Clarino, George Dooher, Jr., Steven Evans, Linda Fanton, Jerry Fishman, Jay Frantz, Lawrence Garvey, Alan Nephew, Susan Rowley, Josephine Thomas and Marianne Volante, Petitioners-Respondents,

v.Governor Kathy HOCHUL, Lieutenant Governor and President of the Senate Brian A. Benjamin, Senate Majority Leader and President Pro Tempore of the Senate Andrea Stewart-Cousins, Speaker of the Assembly Carl Heastie, New York State Legislative Task Force on Demographic Research and Reapportionment, Respondents-Appellants, et al., Respondent.

430

CAE 22-00506

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

Entered: April 21, 2022

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JEFFREY W. LANG OF COUNSEL), FOR RESPONDENTS-APPELLANTS GOVERNOR KATHY HOCHUL, LIEUTENANT GOVERNOR AND PRESIDENT OF THE SENATE BRIAN A. BENJAMIN.

CUTI HECKER WANG LLP, NEW YORK CITY (ALICE REITER OF COUNSEL), FOR RESPONDENTS-APPELLANTS SENATE MAJORITY LEADER, PRESIDENT PRO TEMPORE OF THE SENATE ANDREA STEWART-COUSINS AND NEW YORK STATE LEGISLATIVE TASK FORCE ON DEMOGRAPHIC RESEARCH AND REAPPORTIONMENT.

PHILLIPS LYTLE LLP, BUFFALO (CRAIG R. BUCKI OF COUNSEL), AND GRAUBARD MILLER, NEW YORK CITY, FOR RESPONDENT-APPELLANT SPEAKER OF THE ASSEMBLY CARL HEASTIE.

TROUTMAN PEPPER HAMILTON SANDERS LLP, NEW YORK CITY (MISHA TSEYTLIN OF COUNSEL), FOR PETITIONERS-RESPONDENTS.

HOLWELL SHUSTER & GOLDBERG LLP, NEW YORK CITY (JAMES M. MCGUIRE OF COUNSEL), FOR LEAGUE OF WOMEN VOTERS OF NEW YORK STATE, AMICUS CURIAE.

PRESENT: WHALEN, P.J., CENTRA, LINDLEY, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is modified on the law by denying the amended petition insofar as it sought declaratory and injunctive relief on the ground that the 2022 congressional and state senate maps were unconstitutionally enacted by the legislature, vacating the 3^rd, 6^th, 8^th, 9^th, 11^th, 12^th and 13^th decretal paragraphs, deleting the word "void" from the 5^th decretal paragraph and substituting the word "unconstitutional," and as modified the judgment is affirmed without costs and the matter is remitted to Supreme Court, Steuben County, for further proceedings in accordance with the following memorandum: Petitioners commenced this special proceeding pursuant to article III, § 5 of the New York State Constitution and McKinney's Unconsolidated Laws of NY § 4221 (L 1911, ch 773, § 1) seeking judicial review of the recent reapportionment and redistricting by the legislature based on the 2020 federal census. Following a bench trial, Supreme Court granted petitioners declaratory and injunctive relief on the ground that the 2022 congressional, state senate, and state assembly maps were unconstitutionally enacted by the legislature and, alternatively, determined that the 2022 congressional map failed to comply with the substantive requirements of article III, § 4 (c) (5) of the New York State Constitution. Although not challenged by petitioners in the amended petition, the court determined that the assembly plan had been enacted through the same unconstitutional process, and thus declared that plan void, as well as the state senate and congressional plans. Respondents-appellants (respondents) appeal.

In 2014, New York amended article III, § 4 of its Constitution by, inter alia, redefining the process of preparing redistricting plans for consideration, and possible enactment, by the legislature and by restructuring and adding to the principles to be used in the creation of state senate, state assembly, and congressional districts, i.e., in the drawing of new district maps.

Those amendments were also enacted into statute in Legislative Law § 93 (as amended by L 2012, ch 17). The 2020 census provided the first opportunity to put the 2014 constitutional amendments into practice.

The 2014 amendments created an independent redistricting commission (IRC) tasked with preparing a "redistricting plan to establish senate, assembly, and congressional districts" ( NY Const, art III, § 4 [b]; see Legislative Law § 93 ). The IRC was required to submit to the legislature its first redistricting plan and implementing legislation "on or before January first or as soon as practicable thereafter but no later than January 15 [, 2022]" ( NY Const, art III, § 4 [b]). The legislature was then required to vote on the plan without amendment (see id. ). If, inter alia, the legislature failed to approve the first redistricting plan, the IRC was required, within 15 days of notification of that failure and in no case later than February 28, to "prepare and submit to the legislature a second redistricting plan and the necessary implementing legislation" (id. ). The legislature would then vote on that second plan without amendment (see id. ). If the legislature failed to approve the legislation implementing the second redistricting plan from the IRC, "each house shall introduce such implementing legislation with any amendments each house of the legislature deems necessary" (id. ).

Here, the IRC submitted its first redistricting plan on January 3, 2022, before its January 15 deadline. Because the IRC had been deadlocked, however, it submitted the two plans that had garnered equal IRC support (see NY Const, art III, § 5-b [g]). The legislature rejected both plans. Thereafter, the IRC remained deadlocked and failed to submit a second redistricting plan by its deadline. As a result, the legislature drafted and enacted its own redistricting plans for the state senate, state assembly, and congress. Petitioners challenged the congressional and state senate plans as unconstitutional on procedural and substantive grounds. The court agreed with petitioners and determined that those plans were unconstitutionally enacted by the legislature and, alternatively, that the 2022 congressional map failed to comply with the substantive requirements of article III, § 4 (c) (5) of the New York State Constitution. The court also, sua sponte, determined that the unchallenged state assembly map was unconstitutionally enacted by the legislature.

As a threshold matter, we conclude that, contrary to the contention of certain respondents, petitioners have standing to seek review of the legislature's redistricting plans. Article III, § 5 of the New York State Constitution expressly provides for judicial review of a redistricting plan upon a petition brought by "any citizen" (see Uncons Laws § 4221 ; see also Wright v. County of Cattaraugus , 41 A.D.3d 1303, 1304, 838 N.Y.S.2d 301 [4th Dept. 2007] ).

We agree with respondents, however, that the court erred in concluding that the process used by the legislature to enact the 2022 maps was unconstitutional and therefore that the implementing legislation is void. "A statute enjoy[s] a strong presumption of constitutionality ... [and,] [t]o rebut that presumption, the party attempting to strike down a statute as facially unconstitutional bears the heavy burden of proving beyond a reasonable doubt that the statute is in conflict with the Constitution" ( People v. Viviani , 36 N.Y.3d 564, 576, 145 N.Y.S.3d 512, 169 N.E.3d 224 [2021] [internal quotation marks omitted]; see Overstock.com, Inc. v. New York State Dept. of Taxation & Fin. , 20 N.Y.3d 586, 593, 965 N.Y.S.2d 61, 987 N.E.2d 621 [2013], cert denied 571 U.S. 1071, 134 S.Ct. 682, 187 L.Ed.2d 549; Cohen v. Cuomo , 19 N.Y.3d 196, 201-202, 946 N.Y.S.2d 536, 969 N.E.2d 754 [2012] ). A law will be deemed unconstitutional "only as a last unavoidable result ... after every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible" ( White v. Cuomo , ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2022 N.Y. Slip Op. 01954, *4 [2022] [internal quotation marks omitted]). "[R]eapportionment is within the legislative power with the exercise thereof being subject to constitutional regulation and limitation" ( Matter of Orans , 15 N.Y.2d 339, 352, 258 N.Y.S.2d 825, 206 N.E.2d 854 [1965], appeal dismissed 382 U.S. 10, 86 S.Ct. 75, 15 L.Ed.2d 13 [1965] ).

We conclude that the New York State Constitution is silent as to the appropriate procedure to be utilized in the event that the IRC fails to submit a second redistricting plan to the legislature as constitutionally directed, and we thus conclude that the legislation used to fill the gap in that procedure is not unconstitutional and that the redistricting maps enacted by the legislature pursuant to that legislation are not void ab initio. The legislature had proposed amendments to article III of the Constitution providing that, "[i]f the [IRC] does not vote on any redistricting plan or plans, for any reason, by the date required for submission of such plan by this article, the [IRC] shall submit to the legislature all plans in its possession, both completed and in draft form, and the data upon which such plans are based" (2019 NY Senate Bill S8833; see 2021 NY Senate Bill S515). Thus, if the IRC failed to submit a plan by its deadline, it would produce its draft materials to the legislature, and the legislature would begin the process of making "any amendments [to the implementing legislation] each house of the legislature deems necessary" per the original 2014 amendments, subject to certain drafting principles ( NY Const, art III, § 4 [b]). That proposed amendment was submitted to the voters in 2020 as part of a larger package of amendments, but did not pass. Therefore, in order to remedy the procedural gap, the legislature enacted a legislative amendment (L 2021, ch 633, § 1) that expressly authorized it to enact redistricting plans, if the IRC failed to act, in the same way as if the IRC had submitted a second plan that the legislature rejected.

The court appears to have agreed with petitioners that, because article III, § 4 (e) provides that the IRC process outlined in § 4 (b) ...