Yatauro v. Mangano

Decision Date09 August 2011
Citation928 N.Y.S.2d 561,2011 N.Y. Slip Op. 06230,87 A.D.3d 582
PartiesDiane YATAURO, et al., plaintiffs/petitioners-respondents-appellants,v.Edward P. MANGANO, etc., et al., defendants/respondents-appellants-respondents,William T. Biamonte, et al., defendants/respondents-respondents.
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, N.Y. (Peter A. Bee, William C. DeWitt, Stephen L. Martir, and Court Cousins of counsel), for defendants/respondents-appellants-respondents.Jaspan Schlesinger LLP, Garden City, N.Y. (Steven R. Schlesinger and Hale Yazicioglu of counsel), for plaintiffs/petitioners-respondents-appellants.Thomas J. Garry, Mineola, N.Y., for defendant/respondent-respondent William T. Biamonte, Commissioner of the Nassau County Board of Elections.REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

In a hybrid action, inter alia, for a judgment declaring, among other things, that the implementation of Local Law No. 3 (2011) of County of Nassau in connection with the general election to be held on November 8, 2011, is null and void, and proceeding pursuant to CPLR article 78, Edward P. Mangano, in his capacity as Nassau County Executive, Peter J. Schmitt, John J. Ciotti, Denise Ford, Francis X. Becker, Jr., Howard J. Kopel, Vincent T. Muscarella, Richard J. Nicolello, Norma L. Gonsalves, Joseph V. Belesi, Dennis Dunne, Sr., and Rose Marie Walker, individually and in their capacity as members of the Nassau County Legislature, William J. Muller, in his capacity as Clerk of the Nassau County Legislature, the Nassau County Legislature, and the County of Nassau appeal, as limited by their brief, from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Jaeger, J.), entered July 21, 2011, as, upon converting the plaintiffs/petitioners' order to show cause into a motion for summary judgment on the first cause of action, granted the motion for summary judgment to the extent that it declared that the implementation of Local Law No. 3 (2011) of County of Nassau in connection with the general election to be held on November 8, 2011, is null and void for lack of compliance with Nassau County Charter §§ 113 and 114, and the plaintiffs/petitioners cross-appeal from so much of the same order and judgment as declared that the adoption of Local Law No. 3 (2011) of County of Nassau is in accord with Nassau County Charter § 112.

ORDERED that the order and judgment is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, that branch of the plaintiffs/petitioners' motion which was for summary judgment on their first cause of action is denied, and it is declared that the legislative boundaries described in Annex A to the Nassau County Charter, as amended by Local Law No. 3 (2011) of County of Nassau, must be implemented in connection with the general election to be held on November 8, 2011; and it is further,

ORDERED that the order and judgment is affirmed insofar as cross-appealed from, without costs or disbursements.

Seven members of the Nassau County Legislature (hereinafter collectively the plaintiffs/petitioners) commenced this hybrid action/proceeding, inter alia, for a judgment declaring, among other things, that the implementation of Local Law No. 3 (2011) of County of Nassau (hereinafter Local Law 3–2011) in connection with the general election to be held on November 8, 2011, is null and void for lack of compliance with sections 112, 113, and 114 of the Nassau County Charter (hereinafter the Charter). The plaintiffs/petitioners contend that Local Law 3–2011, which redrew the metes and bounds of the County's 19 legislative districts based on the results of the 2010 decennial federal census (U.S. Dept. of Commerce, Census Bureau, Census of Population and Housing, 2010) fails to comply with the requirements of Charter §§ 112, 113, and 114, which establish a three-step process by which the County Legislature may redistrict on a decennial basis. William T. Biamonte, a Commissioner of the Nassau County Board of Elections, who is named as a defendant/respondent in this hybrid action/proceeding, has filed a brief in support of the position taken by the plaintiffs/petitioners.

The remaining named defendants/respondents in this hybrid action/proceeding are 11 members of the Nassau County Legislature, Edward P. Mangano, in his capacity as Nassau County Executive, William J. Muller, in his capacity as Clerk of the Nassau County Legislature, the Nassau County Legislature, and the County of Nassau (hereinafter collectively the appellants), and Louis G. Savinetti, a Commissioner of the Nassau County Board of Elections. The appellants contend that Local Law 3–2011 complies with section 112 of the Charter, which explicitly requires the legislature to adopt a local law describing the 19 county legislative districts, based upon the release of decennial federal census data, within six months of public announcement of such census data, and that nothing contained in sections 112, 113, or 114 prohibits or precludes the immediate implementation of the newly described legislative districts.

The Supreme Court agreed, in part, with the plaintiffs/petitioners and agreed, in part, with the appellants. In the order and judgment appealed and cross-appealed from, the Supreme Court held that there was no basis within the Charter itself, the legislative intent or history of sections 112, 113, and 114 of the Charter, or the established past practice of the County Legislature, to support the appellants' contention that a local law, describing the new metes and bounds of the 19 districts, adopted in compliance with section 112, may be implemented immediately and, specifically, that there was no basis to implement Local Law 3–2011 in connection with the upcoming 2011 general election. Rather, the Supreme Court held that a plain reading of the sections establishes that the adoption of Local Law 3–2011 was simply the first of three steps to be taken by the County Legislature before redistricting may be effectively completed, in time for the 2013 general election. However, contrary to the plaintiffs/petitioners' contention, the Supreme Court declared that the adoption of Local Law 3–2011 did comply with the requirements of section 112.

In 1994, the Charter was significantly amended by the adoption of Local Law No. 11 (1994) of County of Nassau (adopted on November 8, 1994; effective January 1, 1996), which was a response to a constitutional challenge to the structure of the government and system of weighted voting in Nassau County ( see Jackson v. Nassau County Bd. of Supervisors, 818 F.Supp. 509). Local Law No. 11 (1994) of County of Nassau, which was adopted by public referendum, changed the form, powers, structure, and districts of a new County Legislature, including, but not limited to, eliminating the six member Board of Supervisors and replacing it with 19 single member districts. Sections 112, titled “Legislative districts,” 113, titled “Temporary districting advisory commission; appointment; terms; vacancies; powers and duties; hearings; and approval of plan,” and 114, titled “The County Legislature to adopt plan,” were also added to the Charter at that time to provide the process by which redistricting of the legislative electoral districts of the County would be handled in the future, in connection with the decennial census.

Section 112 states, in relevant part:

“1. The nineteen county legislative districts shall be set forth in the map attached hereto as Annex A, bounded and described in said Annex A.

“2. The County Legislature shall within six months after public announcement of the enumeration of the inhabitants of Nassau County in each decennial federal census commencing with the federal census for the year 2000, adopt a local law amending Annex A hereto to describe the nineteen county legislative districts which shall be based upon the new census data. Such local law shall comply with the legal and constitutional requirements for equal representation in the County Legislature of the residents of the county.”

“3. If, as a result of a readjustment or alteration of the county legislative districts as provided in subdivision two of this section, any county legislator shall no longer reside within the boundary lines of the county legislative district such county legislator represents, then, unless such county legislator shall, within twelve months of the effective date of such readjustment or alteration, change such person's residence so as to reside within the boundary lines of such county legislative district, such county legislator shall cease to hold such office, and the vacancy in such office shall be filled in the manner provided in section one hundred eight.”

(Nassau County Charter [hereinafter Charter] § 112).

Section 113 states, in relevant part:

“1. (a) There shall be a temporary districting advisory commission established each legislative term in which the legislature is required to reapportion the county legislative districts as a result of the federal decennial census ... The appointment of members of the temporary districting advisory commission shall be made no earlier than one year and eight months before, and no later than one year and six months before, the general election of the county legislators to be held in the year, two thousand and three and every ten years thereafter in accordance with the provisions of this section.

...

“2. The temporary districting advisory commission may recommend one or more plans to the county Legislature for dividing the county into legislative districts for the election of county legislators which plan shall comply with applicable law. The temporary districting advisory commission is authorized to hire experts, counsel, consultants and staff as provided for in the budget of...

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