Nichols v. Hochul

77 Misc.3d 245

177 N.Y.S.3d 424

Paul NICHOLS, Gavin Wax, Gary Greenberg, Petitioner,

v.Governor Kathy HOCHUL, Senate Majority Leader and President Pro Tempore of the Senate Andrea Stewart-Cousins, Speaker of the Assembly Carl Heastie, New York State Board of Elections, New York State Legislative Task Force on Demographic Research and Reapportionment, Respondent.

Index No. 154213/2022

Supreme Court, New York County, New York.

Decided on September 29, 2022

Petitioners Nichols and Greenberg, Jim Walden, Esq., Walden Macht & Haran, LLP, 250 Vesey Street, 27th Floor, New York, NY 10281, Tel: (212) 335-2030, jwalden@wmhlaw.com

Petitioner Wax, Aaron S. Foldenauer, Esq., Law Office of Aaron S. Foldenauer, 30 Wall Street, 8th Floor, New York, NY 10005, Tel: (212) 961-6505, aaron@nyelectionlaw.com

Respondent Carl Heastie, Speaker of the Assembly, Craig R. Bucki, Esq., Phillips Lytle, LLP, One Canalside, 125 Main Street, Buffalo. NY 14203, (716) 847-8400, cbucki@phillipslytle.com

Respondent Kathy Hochul, Governor, Seth J. Farber, Esq., New York State Office of the Attorney General, 28 Liberty Street, 23rd Floor, New York, NY 10005, Seth.farber@ag.ny.gov

Respondents Imamura, Cuevas-Molina, Frazier, Flateau and Collado, Jeremy Hale Ershow, Esq., Allison N. Douglis, Esq., Jessica Ring Amunson, Esq. (pro hac vice), Jenner & Block, LLP, 1155 Avenue of the Americas, New York, New York 10036, Telephone: (212) 303-2505, jershow@jenner.com, adouglis@jenner.com jamunson@jenner.com

Respondents Brady, Conway, Harris, Nesbitt and Stephens, Timothy Hill, Esq., Messina Perillo Hill, LLP, 285 West Main Street, Suite 203, Sayville, New York 11782, (631) 582-9422, thill@mphlawgroup.com

Laurence L. Love, J.

The Petition is resolved as follows:

It is indisputable that the decennial process of redistricting is fraught with partisan political infighting, requiring the balancing of competing forces in the established Democratic and Republican Parties as well as factions within both. Added to that dynamic are numerous subsets of interests representing regional and local concerns as well as those striving to address the needs of various ethnic groups. When further accounting for the established Federal and State constitutional and legal requirements, the road to redistricting is rarely straight forward and frequently requires court intervention as a remedy for violations of a process meant to be solely implemented by the state legislatures and related bodies.

Here the Court has been presented with what can safely be described as an unprecedented set of circumstances within the State of New York as the most recent process of redistricting was the first attempt at same following amendments to the New York State Constitution in 2014 and as such, was the Courts’ first interpretation of the meaning of said amendments. As discussed below, the Court of Appeals upheld constitutional challenges leading to the invalidation of the congressional and state senate maps originally approved by the legislature and new district maps were drawn and implemented in a truncated process, based upon the work of a special master overseen by a single state Supreme Court Justice. The state assembly map was intentionally omitted from that action leading to the instant action wherein this Court has been charged with setting the course, per the state constitution, as to the process in which the Assembly maps shall be implemented for the 2024 election cycle.

In a Decision and Order dated, May 25, 2022 this Court denied Petitioners’ original Order to Show Cause, which sought an Order 1. Declaring pursuant to CPLR § 3001 that the 2022 state assembly map, ("New Assembly Map") see 2021—2022 NY Reg. Sess. Leg. Bills A.9040-A and A.9168, is void based upon the constitutional flaws in its adoption previously found by the Court of Appeals; 2. Appointing a special master to adopt a legally compliant state assembly map; 3. Enjoining Respondents to adjourn the primary election date for state and local elections to August 23, 2022, or, alternatively, September 13, 2022; 4. Enjoining Respondents to open designating and independent nominating petition periods, see NY Elec. Law §§ 6-134, 6-138, for statewide, congressional, state assembly, state senate, and local offices with deadlines sufficient for current candidates to obtain new designating petition signatures or run independently, and for potential candidates to newly qualify for primary elections or as an independent in the general election; and 5. Suspending or enjoining the operation of any other state laws, or vacating any certifications or other official acts of the acts of the New York State Board of Elections or other governmental body, that would undermine this Court's ability to offer effective and complete relief for the November 2022 elections and related primaries and seeking a Temporary Restraining Order and Preliminary Injunction for related relief.

Petitioners commenced the instant Petition on May 15, 2022 seeking a declaration, pursuant to CPLR § 3001, that the New Assembly Map is void based upon the related ruling of the Court of Appeals in Harkenrider v. Hochul , 38 N.Y.3d 494, 176 N.Y.S.3d 157, 197 N.E.3d 437 (" Harkenrider III ")(affirming as modified the Appellate Division, Fourth Department's ruling in Harkenrider v. Hochul , 2022 N.Y. Slip Op. 02648, 204 A.D.3d 1366, 167 N.Y.S.3d 659 [" Harkenrider II "]) and the present Order to Show Cause was presented to this Court on May 18, 2022. Said Decision and Order further dismissed the instant Petition as untimely. Petitioners appealed.

In a decision dated June 10, 2022 ( Nichols v. Hochul , 206 A.D.3d 463, 170 N.Y.S.3d 70 (2022) ), the Appellate Division, First Department, affirming this Court's Decision and Order in part, ruled that "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." However, the Appellate Division further held that "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 )" and remanded the matter to this Court "for consideration of the proper means for redrawing the state assembly map, in accordance with NY Const, art III, § 5—b", and to do so no sooner than the 2024 general election.

NY Const, art III, § 5—b states, in relevant part, that "(a) On or before February first of each year ending with a zero and at any other time a court orders that congressional or state legislative districts be amended, an independent redistricting commission shall be established to determine the district lines for congressional and state legislative offices." The remaining text of § 5—b set forth the appointment and eligibility of members, their compensation, quorum requirements, and procedural requirements for the adoption of said maps.

In an Order dated June 27, 2022, this Court directed all parties to submit briefs and supporting materials on the issue of how best to accomplish the redrawing of the state assembly map as ordered and heard oral argument on said issue on August 24, 2022. Following said oral argument this Court also signed an Order to Show Cause on the issue of whether to add the New York State Independent Redistricting Commission ("IRC") as a Respondent in this proceeding. At or prior to oral argument on said Order to Show Cause, which occurred on September 16, 2022, all of the members of the IRC appeared either by counsel or submitted affidavits consenting to the addition of the IRC and its individual members as respondents in this action. As such, the IRC and David Imamura, Dr. John Flateau, Yovan Samuel Collado, Ivelisse Cuevas-Molina, Elaine Frazier, Ross Brady, John Conway III, Lisa Harris, Charles Nesbitt, and Willis H. Steven shall be added as Respondents.

As discussed in Harkenrider , "The plain language of Article III, § 4 dictates that the IRC "shall prepare" and "shall submit" to the legislature a redistricting plan with implementing legislation, that IRC plan "shall be voted upon, without amendment" by the legislature, and — in the event the first plan is rejected — the IRC "shall prepare and submit to the legislature a second redistricting plan and the necessary implementing legislation," which again "shall be voted upon, without amendment" ( NY Const, art III, § 4 [b]). "If" and only "if" that second plan is rejected, does the Constitution permit the legislature to introduce its own implementing legislation, "with any amendments" to the IRC plans deemed necessary that otherwise comply with constitutional directives ( NY Const, art III, § 4 [b])." Said Court further analyzed the circumstances giving rise to the 2014 Constitutional Amendments, the legislative history of the 2014 Constitutional Amendments and the legislative history of the Redistricting Reform Act of 2012, finding that "In sum, there can be no question that the drafters of the 2014 constitutional amendments and the voters of this state intended compliance with the IRC process to be a constitutionally required precondition to the legislature's enactment of redistricting legislation." Based upon the failure to follow the constitutionally mandated process, the Court found the enactment of the congressional and state senate maps by the legislature was procedurally unconstitutional and as such, the legislature's enactment of the assembly maps at issue in the instant case was also procedurally unconstitutional. In crafting a remedy, the Harkenri...