Reapportionment Lawsuit Copy

7/30/2019 Reapportionment Lawsuit Copy

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SUPREME COURT STATE OF NEW YORKCOUNTY OF OSWEGO

Index No.:

ORDER TO SHOW CAUSE

In the Matter of the Application ofDANIEL FARFAGLIA, AMY TRESIDDER, DOUGL ASMALONE, BARBARA BROWN, JACOB MULCAHEY,JUNE RIVERS, GAY WILLIAMS, SAMUEL WEBER, JR.,ALFRED GERISCH, RONALD GREENLEAF, ANDMICHAEL KUNZWILER,

Petitioners,For an Order, pursuant to Section 10(13)(a)(ii)of the Mu nicipal Home Rule LawVS.OSWEGO COUNTYOSWEGO COUNTY LEGISLATURE,DICK ATKINS, PEGGY BICKFORD , Commissioners,Constituting the OSWEGO COU NTY BO ARD O F ELECTIONS

Respondents,For an Order declaring invalid the twenty-five (25) Election Districts for the OSWEGOCOUNTY LEGISLATURE Passed into law by the OSWEGO COUNTY LEGISLATURE onDecember 28, 2012 and formally adopted by the OSWEGO COUNTY BOARD OFELECTIONS on March 11, 2013.

Upon the Petition of FRA NK H OU SH, Attorney at Law, C ounsel to the Petitioners, and exhibitsannexed thereto LIST EX HIBITS, and upon all proceedings heretofore had herein, it is hereby

ORD ERED , that the above named Respondents show cause before this Court at aSpecial Term thereof to be held on

or as soon thereafter as Counsel can be heard, why an Order shall not be made andentered herein:1. Declaring null and void the twenty-five (25) Legislative Districts Passed into law bythe OSWEGO COUNTY LEGISLATURE on December 28, 2012 and formallyadopted by the OSWEGO COUN TY BOA RD O F ELECTIONS on March 11, 2013;


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2. Declaring that all actions taken in the implementation of the aforesaid ElectionDistricts are illegal, void, and against pu blic policy,3. Directing the Respondents OSWEGO COUNTY LEGISLATURE to reconvene the

Committee on Reapportionment which will consist of an equal number of majorityand minority party members to be selected by the Chairman of the Legislature (oracting Chairman) and the Minority Leader of the Legislature_ to create twenty-five(25) new Districts for the OSWEGO COUNTY LEGISLATURE which comport tothe mandates of Section 10(13)(a)(ii) of the Municipal Home Rule Law;4. Enjoining, restraining, and prohibiting Respondents OSWEG O C OUN TY BOARDOF ELECTIONS from printing an d placing the names of any candidates for the forelection to the OSWEGO COUNTY LEGISLATURE to be used at any Primary orGeneral Election in 2013;5. Requiring that during the pendency of this action the OSWEGO COUNTYLEGISLATURE use the existing Legislative Districts at any Primary or GeneralElection;6. Granting such other, further, and different relief as the Court may deem just and

proper;Sufficient reason appearing therefore, leave is hereby granted for Petitioners tosubmit, upon the return date of this Order to Show Cause and the argument andhearing thereof, such additional evidence, exhibits, and other proof as may benecessary, and it is furtherORDERED that service of a copy of this Order to Show Cause, together with a copyof the papers upon which it was signed, be made upon the individual Respondents attheir places of business on or before an d that personal serviceof this Order to Show Cause and Petition be deemed good and sufficient servicethereof.LET ANSWERING PAPERS be served upon Petitioner's Counsel by Mail and FAXat 716.242.3000 and email, [email protected] no later than two (2) days prior tothe return date hereof.

Justice of the Supreme CourtOf the State of New York


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S U P R E M E COU R T STATE OF NEW Y O R KCOUNTYOFOSWEGO

In the Matter of the A pplication ofDANIEL FARFAGLIA, AM Y TRESIDDER, DOUGLAS Index No.:MALONE, BARBARA BROWN, JACOB MULCAHEY,JUNE RIVERS, GAY WILLIAMS, SAMUEL WEBER, JR.,ALFRED GERISCH, RONALD GREENLEA F, ANDMICHAEL KUNZWEILER,

Petitioners,ATTORNEY'SAFFIRMATION INSUPPRT OF ORDER TOSHOW CAUSE

For an Order, pursuant to Section 10(13)(a)(ii)of the Municipal Home Rule LawVS.OSWEGO COUNTYOSWEGO COUNTY LEGISLATURE,DICK ATKINS, PEGGY BICKFORD, Commissioners,Constituting the OSWEGO COUNTY BOARD OF ELECTIONS

Respondents,For an Order declaring invalid the twenty-five (25) Election Districts for the OSWEGOCOUNTY LEG ISLATU RE Passed into law by the OSWEGO COU NTY LE GISLA TUR E onDecember 28, 2013 and formally adopted by the OSWEGO COUNTY BOARD OFELECT IONS on March 11. 2013.

FRANK HOUSH, ESQ., an attorney at law, declares the following under penalty of perjury:1) I represent the Petitioners, DANIEL FARFAGLIA, AMY TRESIDDER, D OUGLAS

MALONE, BARBARA BROWN, JACOB MULCAHEY, JUNE RIVERS, GAYWILLIAMS, SAMUEL WEBER, JR., ALFRED GERISCH, RONALDGREENLEAF, AND MICHAEL KU NZWEILER in the above-captioned case.


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2) This affirmation has been divided into subheadings in accordance with the reliefrequested.

HISTORY OF OSWEGO COUNTY L EGISLATU RE REDISTRICTING SINCE TH E 1990DICENTENNIAL CENSUS

3) Th e 1990 Census saw the first mea ningful m odernization of the County Legislativeredistricting process. Prior to 1993, a complex, w eighted system for the electionCounty Legislature existed. This resulted in a Board of Legislators with thirty-six(36) members with a mixture o f at-large an d territorially-defined districts called"wards."

4) Following a failed ad contentious political process, in 1993, Oswego County enteredinto a stipulation w ith plaintiffs in the case Goldych et al Oswego County et al,Exhibit A. This stipulation requires that "each Legislative District to be as equal insize as is practical and con stitutionally and statutorily permissible." This effectivelyimposed a Court-mandated twenty-five (25) member Legislature, eliminating theweighted antiquated v oting system.

5) In response to the 2000 Census, on December 13, 2001 the Legislature adoptedResolution 226, Exhibit B. It should be noted that the 2000 plan allowed for nopublic hearings and was imposed after 'the General Governm ent Committee has metseveral times with leg al counsel" an d effectively continued the plan imposed by theGoldych decision.


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6) A similarly contentious process followed the 2010 Census. In the end, on December28,2012, the Oswego County L egislature adopted Local Law Number 9, Exhibit C,amending L ocal Law Number 1 of 1993, thus placing the redistricting scheme at issuewith the mandates of the Goldych decision.

THE PETITIONERS7) DANIEL FARFAGLIA is a member of the OSWEG O CO UNTY LEGISLATURE

and Minority Party Mem ber of the Oswego County Reapportionment Committee.8) AMY TRESIDDER is a member of the Oswego County Legislature.9) DOU GLA S MA LONE is a member if the Oswego County Legislature.10) BARBARA BROWN is a private citizen that resides in the Town of Palermo and is a

former member of the Oswego County Legislature. The Town of Palermo is one ofthe five Oswego County towns redistricted in violation of the Mun icipal Home RuleLaw.

11) JACO B M ULC AH EY is a member of the Oswego County Legislature.12) JUNE RIV ER S is a private citizen that resides in the Town of Mexico. The Town of

Mex ico is one of the five Oswego County towns redistricted in violation of theMunicipal Home Rule Law.

13) GAY WIL LIA M S is a private citizen that resides in the Town of Minetto. The Townof Minetto is one of the five Oswego County towns redistricted in violation of theMunicipal Hom e Rule Law.

14) SAM UEL WEB ER, JR. is a private citizen that resides in the Town of M exico.


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15) ALFRED GERISCH is a private citizen that resides in the Town of West Monroe.The Town of West Monroe is one of the five Oswego County towns redistricted inviolation of the M unicipal Home Rule Law.

16) RONALD GREENLEAF is a citizen of the Town of Hannibal and is also a publicofficial. The Tow n of Hannibal is one of the five Oswego County towns redistrictedin violation of the Municipal Home Rule Law.

17) MICHAEL KUNZWILER is a member of the Oswego County Legislature andserves as Minority Leader.

SECTION 10fl3aii) OF THE MUNICIPAL HOME RULE LAW18) New York Municipal Home Rule Law Section 10(a)(l)(13)(ii) reads:

10. General powers of local governments to adopt and amendlocal laws(13) The apportionment of its legislative body and, only inconnection with such action taken pursuant to this subparagraph,the composition and membership of such body, the terms of officeof members thereof, the units of local government or other areasfrom which representatives are to be chosen and the voting powersof individual members of such legislative body. Except for theequal apportionment requirements in subclause (i.) of clause (a.)and clause (c.) of this subparagraph, which shall apply generally toany local government, the power granted by this subparagraphshall be in addition to and not in substitution for any other powerand the provisions of this subparagraph shall apply only to localgovernments w hich adopt a plan of apportionment thereunder.(a.) A plan of apportionment adopted un der this subparagraph shallcomply with the following standards, which shall have priority inthe order herein set forth, to the extent applicable:(ii.) In such plan adopted by a county, no town except a town having more than on e hundred and ten per cent of a full ratio for eachrepresentative, shall be divided in the form ation of representationareas. Adjacent representation areas in the same town or city shall


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no t contain a greater excess in population than five per cent of afull ratio for each representative.

HOW THE OSWEGO LEGISLATURE'S REDISTRICTING SCHEME V IOLATES SECTION10(13)(aii) OF THE MUNICIPAL HOME RUL E LAW

19) The United States Constitution requires that each district have about the samepopulation: each federal district within a state must have about the same number ofpeople, each political state and local district within a state must have the samenumber of people.

20) The standard for Congressional Districts is quite strict, w ith each popu lation required"as nearly as is practicable," Wesberry v. Sanders, 376 U.S. 1. In practice, this meansthat states must make a good-faith effort to draw districts with exactly the samenumber of voters in each po litical district.

21) State an d local legislative districts must follow a different, less strict standard ofmerely being "substantially equal," Reyno lds v. Suns, 377 U.S. 533. This has beeninterpreted to mean local governments like the one in the case at bar are allowed a 10percent deviation from the average population for each district. That deviation can beeven 5 percent above to 5 percent below the average or it can have a higher orlower deviation, such as 7 percent above the average and 3 percent below.

22) A total 10% overall popu lation deviation among districts here entitles redistricting


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authorities to a rebuttable p resumption that the deviation was the result of an "honestand good faith effort" to reach population equality. Daly v Hunt 93 F.3rd 1212,1220(4th Cir.l 996).

23) This 10% rule is not absolute. It permits flexibility. R edistricting plans with deviationbelow 10% can be found to violate the law if the deviation results from anunconstitutional, irrational or arbitrary government policy (such as partisan orregional population bias w ithin a plan). Deviations below 10% have been struckdown when they are "tainted by arbitrariness or discrimination." Larios v. Cox 300 F.Supp.2dl320 (N.D. Ga. 2004) at 1338.

24) Unless state or local law requires a different lower maximum population deviationstandard, there is no requirement that a redistricting authority ho ld itself to a lowerstandard arbitrarily.

25) Requirements that towns or villages not be split provide justification for higher-enddeviations within the overall 10% window.

26) The population deviation contained in Exhibit C is 6.91 % . Critically, the Plansplits five (5) Oswego C ounty townships that d on't meet the g uidelines listed in The N ewYork State M unicipal Hom e Rule Law at 10(l)(ii)(a)(13)(c). The plan illegally dividesthe Towns of Hannibal, Mexico, Minetto, Palermo, an d West M onroe.


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WHY THE QSWEGO L EGISLATU RE'S REDISTRICTING SCHEME MUST BEDECLARED NULL AND VOID27) Oswego County's 2010 population, following prisoner adjustment data, was 122,325.

28) The median population for each of the 25 Legislative Districts is therefore 4893.Applying the 10% threshold, the minimum number of voters in each district would be4649; the maximum number would be 5138.

29) The only exception to this is found in Municipal Home Rule Law 10(a)(l)(13)(ii)whereby if a Tow n's population is higher than the maximum number but not greaterthan 110% of the full ratio, or 5381.

30) Exhibit C divides the Towns of Mexico, Hannibal, Palermo, Minetto, and WestMonroe despite the fact that they do not fall within the Municipal Home Rule Law.

CONCLUSION31) New York Municipal Home Rule Law Section 10(a)(l)(13)(ii) exists to serve an

important public policy function and may not simply be disregarded within aredistricting scheme.

32) The Legislature can easily m ake the necessary changes to adhere to the law or, in thealternative, ca n proceed to the next election cycle with the current district lines intact.As above, there is ample local precedent for this, as the current lines w ere imposed by


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judicial mandate twenty (20) years ago and have remained in place due to theinability of the Legislature to create new lines in an orderly and legal manner.

DATED: APRIL 30, 2013Buffalo, New York

Respectfully Submitted,

Frank HoushHoush Law Offices70 Niagara StreetBuffalo, NY 14202p.716.362.1128 | f 716.242.3000frank@h oushlaw. com

Reapportionment Lawsuit Copy

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