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EISBERG v. DUTCHESS COUNTY LEGISLATURE

February 19, 1999

ALBERT EISBERG, JOAN SPENCE, WILMA JAFFE, RICHARD WOLF AND KENNETH POCKETT, PLAINTIFFS,
v.
DUTCHESS COUNTY LEGISLATURE, DUTCHESS COUNTY LEGISLATURE DEMOCRATIC MEMBERS, DUTCHESS COUNTY BOARD OF ELECTIONS, PATRICIA J. HOHMANN, IN HER OFFICIAL CAPACITY AS CLERK OF THE DUTCHESS COUNTY LEGISLATURE, WILLIAM J. EGAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A DUTCHESS COUNTY ELECTION COMMISSIONER, AND THOMAS TODD BENDER, DEFENDANTS.



The opinion of the court was delivered by: Parker, District Judge.

MEMORANDUM AND ORDER

Plaintiffs Albert Eisberg, Joan Spence, Wilma Jaffe, Richard Wolf and Kenneth Pockett, members of the Dutchess County Democratic Committee, bring this action pursuant to 42 U.S.C. § 1983 against the Dutchess County Legislature, its Democratic Members, the Dutchess County Board of Elections, the Dutchess County Legislative Clerk, Patricia Hohmann, the Dutchess County Election Commissioner, William Egan, and Thomas Bender, alleging the violation of rights protected under the First and Fourteenth Amendments to the United States Constitution.

Richard Wolf was elected in November 1998 and thereafter recommended to the Dutchess County Legislature for the position of Commission of Elections pursuant to New York Election Law § 3-204. After he was ultimately not appointed to the position by the Legislature, Wolf and other members of the recommending body, the Dutchess County Democratic Committee, commenced this action challenging the constitutionality of the provision of § 3204(4) that ostensibly permitted the Legislature to disregard the Committee's recommendation. The plaintiffs move for a preliminary injunctive relief pursuant to Fed.R.Civ.P. Rule 65, which, for the reasons set forth, is denied. The Court's findings of fact and conclusions of law follow.

The New York State Constitution provides that "[a]ll laws creating, regulating or affecting boards or officers charged with the duty of qualifying voters, or of distributing ballots to voters, or of receiving, recording or counting votes at elections, shall secure equal representation of the two political parties." Art 2, § 8. The Constitution further provides that "[a]ll such boards and officers shall be appointed or elected in such manner, and upon the nomination of such representatives of said parties respectively, as the legislature may direct." Id.

New York Election Law § 3-204(4) sets forth the procedures for appointing Commissioners of Election as follows:

  Commissioners of election shall be appointed by the
  county legislative body, or in the city of New York,
  by the city council. Provided, however, that if a
  legislative body shall fail to appoint any person
  recommended by a party for appointment as a
  commissioner pursuant to this section, within thirty
  days after the filing of a certificate of
  recommendation with such legislative body, then the
  members of such legislative body who are members of
  the political party which filed such certificate may
  appoint such person. If none of the persons named in
  any of the certificates filed by a party are so
  appointed within sixty days after the filing of any
  such certificate, then such party may file another
  certificate within thirty days after the expiration
  of any such sixty day period recommending a different
  person for such appointment. If a party fails to file
  a certificate within the time prescribed by this
  section, the members of the legislative body who are
  members of such party may appoint any eligible person
  to such office.

Election Law § 3-204(4).

On November 17, 1998, the Dutchess County Democratic Committee, to which the plaintiffs belong, met pursuant to Election Law § 3-204 to select the party's nominee for Commissioner for a four-year term commencing January 1, 1999. Plaintiff Wolf won this election over the incumbent, defendant Egan. Because Wolf obtained a majority of the votes cast, the Chair of the Democratic Committee filed the required certificate with the Dutchess County Legislature, which stated that Wolf "was recommended by a majority of said committee as a suitable and qualified person for appointment to the office of Commissioner of Elections."

The Dutchess County Legislature is comprised of thirty-five elected legislators, nine of which are Democrats. On December 3, 1998, a motion to appoint Wolf as Commissioner was presented to the full Legislature. At this meeting of the Legislature, several Democratic citizens who attended the Democratic Committee meeting to vote for the recommendation of Election Commissioner, expressed their concern with certain alleged irregularities in the procedures for voting at the meeting. Other citizens who were present disputed the existence of any irregularities. A Democratic legislator moved to table the recommendation, and the motion was seconded by another Democratic legislator. The Chair of the Legislature had the Democratic members vote first on the motion to table, and the motion was approved by a 5-3 vote. Subsequently, the entire Legislature voted to table the recommendation.

The plaintiffs claim that on December 16, 1998, the Legislature met again, but by a majority vote did not prevent the motion to appoint Wolf from being tabled. The defendants claim that the recommendation was not put on the agenda for the December meeting. In any event, under the statute, the Democratic legislators had the opportunity to appoint Wolf during the thirty day period of December 19 to January 18, 1999, but did not meet. During the next thirty days, from January 18 to February 17, 1999, the statute provides that the Dutchess County Democratic Committee could file another certificate recommending a different person for Commissioner. As of February 10, the Democratic Committee had not pursued this option. The statute further provides that if the Democratic Committee fails to file another certificate, the Democratic members of the Legislature may appoint any eligible person. Those steps have not yet occurred.

Plaintiffs essentially argue Election Law § 3-204(4) unconstitutionally allows the County Legislature to nullify the Democrats' "vote" for their nominee. Thus, pending the resolution of their § 1983 claim, they seek an order of this Court restraining: (1) the Dutchess County Legislature and Dutchess County Legislature Democratic Members from taking any action or vote under Election Law § 3204(4) except to appoint Wolf as Commissioner, (2) the Chair of the Dutchess County Democratic Committee from causing or permitting to be conducted any meeting of the Democratic Committee where a purpose of the meeting is to nominate someone other than Wolf for Commissioner, (3) Egan from taking or directing any further action, vote or duties as Commissioner, and (4) directing Wolf to carry out the functions of Democratic Commissioner of Elections commencing February 15, 1999, and to receive the compensation and benefits for the position.

DISCUSSION

Standard

In order to prevail on a motion for a preliminary injunction, a plaintiff generally must establish: (a) irreparable injury and (b) either (i) a likelihood of success on the merits or (ii) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly in the movant's favor. Able v. United States, 44 F.3d 128, 130 (2d Cir. 1995). However, where, as here, the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme, an injunction may be granted only if the moving party establishes, along with irreparable injury, a likelihood that he will succeed on the merits of his claim. Plaza Health Laboratories, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989). This higher standard reflects the "idea that governmental policies ...


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