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United States District Court, Eastern District of New York

August 25, 2003


The opinion of the court was delivered by: Edward Korman, Chief Judge, District


Noach Dear, a former member of the New York City Council, brought this action against the New York City Board of Elections ("BOE") and various individual defendants, alleging that the defendants deprived Dear of his constitutionally protected right to run for public office by declaring him ineligible as a candidate for City Council in the 2003 election. Mr. Dear does not live in the Council District in which he seeks to run. The other plaintiffs in the case are voters who reside in [ Page 2]

that District and intend to vote for Mr. Dear in the Democratic primary.

The Board of Elections determined that Local Law 27 barred Dear, who had previously served as City Councilman for two consecutive four-year terms ending in 2001, from running for his former position until a full four years had passed. Plaintiffs contends that Local Law 27 is unconstitutional as applied against Dear because it imposes a severe burden on core political speech without any legitimate governmental interest, has been selectively enforced against him in violation of the Equal Protection Clause, applies retroactively in violation of his vested right to seek office, and acts as an unconstitutional Bill of Attainder. Plaintiffs also argue that the BOE overstepped its authority in declaring Dear's candidacy ineligible and seek damages under 42 U.S.C. § 1983. According to plaintiffs, the BOE lacks jurisdiction to determine legal questions concerning a candidate's eligibility, and should have dismissed the objections in any event for abuse of process since Dear's opponents had submitted one hundred seventy objections instead of the customary two or three. Finally, plaintiffs assert that Municipal Home Rule Law § 23 requires a Voter Referendum and minimum due process to voters before curtailing an elected official's rights and limiting voters' ability to vote for him/her. Defendants move to dismiss this action arguing that plaintiffs' claims have no merit and are barred by the doctrine of res judicata and collateral estoppel in any case as the issues have already been decided by the New York Supreme Court.



By a vote and the approval of the majority of the qualified electors of the City of New York, voting at the General Election held on Nov. 2, 1993, section 1138 of the New York City Charter was enacted into law. Section 1138 provides as follows: [ Page 3]

Notwithstanding any provision to the contrary contained in this charter, no person shall be eligible to be elected to or serve in the office of mayor, public advocate, comptroller, borough president or council member if that person had previously held such office for two or more full consecutive terms (including in the case of council member at least one four-year term), unless one full term or more has elapsed since that person last held such office; provided, however, that in calculating the number of consecutive terms a person has served, only terms commencing on or after January 1, 1994 shall be counted.
The provisions of section 1138 took effect on Jan. 1, 1994. By the terms of § 1138, Council Members were banned from running for re-election if they had served two consecutive terms. However, the ban was temporary, as the referendum specifically provided that a former Council Member could run again if "one full term or more has elapsed since that person last held such office." The language of this legislation acknowledged that a "full term" for a City Council Member would be two years or four years. The necessities of redistricting results in two two-year terms for City Council Members every 20 years. Thus, a City Council Member's term commencing on January 1, 2002, would be two years; the same is true for terms commencing on January 1, 2004. The "regular" four year terms would then re-commence on January 1, 2006 until the next redistricting in 2021.


On Sept. 25, 2002, New York City Local law No. 27 of the year 2002 took effect. Local Law No. 27 was entitled "To amend the New York City Charter, in relation to qualifications for the office of Council Member." The law allowed sitting Council members who had served two consecutive terms which totaled only six years to run for another two-year term. It also stated that a single two-year term does not constitute a full term under Charter § 1138 except that two consecutive two-year terms would constitute a full term. Local Law 27 amended subdivision "a" of section 25 of the New [ Page 4]

York City Charter to read as follows:

§§ 25 Election; term; vacancies.

a. The council members shall be elected at the general election in the year nineteen hundred seventy-seven and every fourth year thereafter and the term of office of each council member shall commence on the first day of January after the elections and shall continue for four years thereafter; provided, however, that the council member elected at the general election in the year two thousand and one and at the general election in every twentieth year thereafter shall serve for a term of two years commencing on the first day of January after such election; and provided further that an additional election of Council Members shall be held at the general election in the year two thousand three and at the general election every twentieth year thereafter and that the members elected at each such additional election shall serve for a term of two years beginning on the first day of January after such election. Notwithstanding any other provision of this charter or other law, a full term of two years, as established by this subsection, shall not constitute a full term under section 1138 of this charter, except that two consecutive full terms of two years shall constitute one full term under section 1138. A member of the council who resigns or is removed from office prior to the completion of a full term shall be deemed to have held that office for a full term for purposes of section 1138 of the charter.
On May 19, 2003, the Appellate Division upheld the validity of Local Law 27. See In re Matter of Martin Golden, et al, v. New York City Council, et al., 762 N.Y.S.2d 410 (2d Dep't. 2003). The Appellate Division rejected the contention that Local Law 27 required approval in a referendum under state law, and found that a law created by a voter-initiated referendum, specifically section 1138 of the New York City Charter, could be amended by the New York City Council without referendum. The Court noted that Local Law 27 "merely amended the term-limit provision of the City Charter without changing the length of the term of office or curtailing any power of the office," and was a narrowly tailored response to the problem created by redistricting after the result of each decennial census (requiring Council members to be elected to two two-year terms every twenty years instead of the typical four year term). Id. at 413. On June 5, 2003, the New York Court of Appeals denied a motion for leave to appeal the decision. Golden v. New York City Council, [ Page 5]

100 N.Y.2d 504 (2003).

Plaintiffs here contend that the clear purpose of Local Law 27 was the remediation of the original term limits law to permit Council members who had served only six years (one four year term and one two year term) to seek re-election. In Section 1 of Local Law 27, the detailed "Purpose and Intent" section, the sponsors state:

Section 1. Purpose and Intent . . . Section 1138 of Chapter 50 of the New York City Charter, added in 1993 . . . disqualifies Council Members from serving more than two full consecutive terms. It makes no clear distinction between four-year terms and two-year terms, although Section 1137 and the literature in support of the initiative through which it was adopted suggests that the goal of that provision was to limit members to eight consecutive years in office. For example, a brochure distributed by the initiative sponsors told the public that they were voting for a "referendum to limit the Council Member to two consecutive four-year terms." Additionally, the ballot question and other documents discussing the initiative spoke about two consecutive terms of office which in context could only be understood as eight years.
The staff of the City Council Speaker, including its counsel, also prepared written materials for City Council members and the public, addressing the necessity of amending the Chatter so that the Speaker and seven other colleagues could run for another two-year term. See" Defining Qualification for Council Office: Addressing the Two Year Inequity (Volume II of Local Law 27 Legislative Record ("the Record")),

Defendants contend that, while the primary purpose of Local Law 27 was to address the problem of current Council members barred from running for re-election because of the redistricting dilemma, the effect of the clear language of Local Law 27 was to extend the waiting period for all former Council members to a full four year term. Aside from the plain language of Local Law 27, defendants point to the City Council's submissions to the Justice Department. In obtaining preclearance for Local Law 27 from the United States Department of Justice, the New York City [ Page 6]

Council submitted a number of articles outlining the effect of the amendment. (Record, Volume II). These articles contained specific discussions pertaining to the new law's effect on increasing the waiting period for former Council members from two to four years. See, e.g., Janison, Bid to Close Loophole in Term Limits Law, NEWSDAY, July 24, 2002, at A16 ("Under the bill's [Local Law 27] terms, council members who became ineligible to run as of last election in November 2001 would need to wait until 2005 to attempt a comeback"); Janison, Term Limits Bill With a Twist; Some Council Members Would Get More Than Others, NEWSDAY, July 16, 2002, at A15; Janison, They Can Stick Around: City Council Approves Extended Terms For Some, NEWSDAY, July 25, 2002, at A6 ("Council members who took office this year could benefit because [Local Law 27] would keep any of the term-limited members they replaced from challenging them until 2005. Under the current law the ex-members could run for a two-year term next year").


At the General Election to be held in the City of New York on Nov. 4, 2003, members of the City Council are to be elected for a term of two years to commence on Jan. 1, 2004. A Primary Election is to be held on Sept. 9, 2003, during which party nominations for the General Election will be made.

On July 10, 2003, the BOB received a petition containing signatures from over 3000 Democratic voters of the 44th Council District (more than three times the required amount of 900), designating Noach Dear as a candidate for the office of Council Member, 44th City Council District, Borough of Brooklyn, City of New York, in the Sept. 9, 2003 Democratic Party Primary Election, for the term of office to commence on Jan. 1, 2004. Mr. Dear had held the public office of member of the New York City Council for two full consecutive terms (including at least one four-year term) [ Page 7]

beginning on Jan. 1, 1994, and ending on Dec. 31, 2001. Thus, pursuant to New York Charter § 1138, Noach Dear was barred from immediately seeking office for the term beginning on January 1, 2002. Objections to Noach Dear's designating petition, signed by one hundred and seventy voters, including Dear's political opponent, Simcha Felder, were duly filed with the BOE on July 14, 2003. Specifications of objections were duly filed on July 14, 2003 and July 17, 2003. The specifications alleged that Dear was ineligible to be a candidate as designated in his petition, upon the grounds that New York City Charter §§ 25(a) (as amended by Local law 27) and 1138 barred him from being elected to or serving in the office of City Counsel for the aforesaid term. Counsel for the New York City Board of Elections prepared a report recommending that the objections be sustained. On July 31, 2003, the Board of Elections sustained the objections, declared Noach Dear ineligible to run for City Council member this year, and ordered the removal of his name from the ballot.

By order to show cause signed July 31, 2003, plaintiff Dear and four purported voters commenced this federal action, seeking an order to compel the BOE to place Dear on the ballot for the Sept. 9th primary. I issued a temporary restraining order on July 31, 2003, precluding the BOE from printing absentee and military ballots without Noach Dear listed as a candidate. The ballots were scheduled to be printed on August 1, 2003. I did so because, if it was ultimately determined that Noach Dear was ineligible, his only opponent, Simcha Felder, would win the Democratic nomination by default and no harm would occur. On the other hand, if it turned out that Noach Dear was entitled to run, he could suffer irreparable harm if the absentee and military ballots were printed without his name on them.


On June 23, 2003, eleven voters and political officials commenced a state court special [ Page 8]

proceeding against the BOB, the City Council, the City of New York, and Noach Dear. Moving by order to show cause, they sought a declaration that Dear is not eligible to be a candidate in the September 9, 2003 primary. (Ex. 1 to Sharp Decl.). By decision and order dated July 2, 2003, Supreme Court Justice Joseph S. Levine dismissed the proceeding without prejudice as premature, finding that Dear's challengers were obligated to pursue their challenge in accordance with the procedures of Election Law § 16-102, which requires the judicial proceeding to be commenced within 14 days after the last day to file the petition. See Cohen v. Board of Election in the City of New York, Index No. 22806/03 (Sup. Ct, Kings Co. July 2, 2003).

After the objections to his petition were filed with the BOB, Noach Dear commenced a special proceeding pursuant to Election Law § 16-102 to declare the validity of his designating petition as a candidate for election to the City Council, and to compel the BOE to place him on the ballot for the September 9th primary. See Matter of Dear v. Board of Elections in the City of New York, Index No. 264449/03 (Sup.Ct., Kings Co. 2003). On July 18, 2003, defendant Simcha Felder and a purported voter commenced a state court proceeding under the New York Election Law. Moving by order to show cause, they sought to invalidate the designating petition of Dear and declare him ineligible to be a candidate by virtue of the bar of Local law 27. See Weinreich v. Dear, Index No. 26647/03 (Sup.Ct., Kings Co. 2003) (Ex. 4 to Sharp Decl.).

On August 4, 2003, counsel for Noach Dear and his opponents appeared in New York State Supreme Court before Justice Levine and argued the merits of their respective causes. Both parties also submitted memoranda of law to Justice Levine. The memorandum of law submitted by Noach Dear was identical in content to that submitted to this Court on July 31, 2003. All issues raised in this action were also raised before the State Supreme Court, including the allegations of violations [ Page 9]

of the United States Constitution, the New York Constitution, the New York Election Law, and the New York Municipal Home Rule.

Justice Levine issued a written decision and order on August 8, 2003, denying Dear's application seeking to declare valid his designating petition, and granting respondents' petition seeking a declaration that petitioner is ineligible and unqualified to be elected or serve in the office of City Council for the term beginning Jan. 1, 2004. See Matter of Noach Dear v. NYC Board of Elections, et al., Index No. 266449/03 (Sup. Ct, Kings Co. 2003). Among the issues resolved by the opinion, were that the BOE lacked jurisdiction to determine Noach Dear's ineligibility to run for City Council but declared the point moot since the New York State Supreme Court, which is the proper forum for the legal determination of a candidate's qualifications, would ultimately be deciding the question (in the form of his own opinion). Id. at 3-4. Justice Levine also ruled that the filing of one hundred and seventy objections against Noach Dear (requiring Dear to assume the cost of serving process on all 170 objectors), while not condoned, was not clearly an abuse of process. In any event, the question was also moot because the Board of Elections lacked jurisdiction to rule upon the objections and thus could not dismiss them even for abuse of process. Id. at 4-6.

On the merits of whether Noach Dear is barred by sections 25(a) (as amended by Local Law 27) and 1138 of the New York City Charter, Justice Levine held that the statute, on its face, barred Dear's candidacy. Recognizing that legislative intent must first be gleaned from the language of the statute itself before considering extraneous materials, Justice Levine analyzed the language of Local law 27 and found that it clearly and unambiguously rendered ineligible any person who served two consecutive terms of four years unless two consecutive two-year terms, or four years, had elapsed. Id. at 8-10. Justice Levine rejected Dear's argument that the public record was silent as to whether [ Page 10]

Local law 27 applied to former Council members seeking re-election after only a two-year waiting period. Justice Levine took note of several newspaper articles which the New York City Council reproduced in its Voting Rights submission to the Justice Department, in which the reporters commented on the fact that former Council members would have to now wait until the 2005 election year in order to run for office again. Specifically, he found: "That Corporate Counsel submitted these articles to he Justice Department suggests that the City Counsel was in fact aware that the enactment of Local law 27 would extend the waiting period for former City Council members by adding two more years." Id. at 11-12.

Justice Levine also found that Local Law 27 was not an attempt to enact retroactive legislation, reasoning that Dear did not become subject to the additional two-year prohibition until he filed his designating petition in July of this year, after the amendment took effect. Id. at 12-13. Justice Levine also held that there was no violation of the rights of Dear or the voters to due process, equal protection, the right to run for office, the right to vote, or the right to associate. He specifically rejected challenges under the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 1 and 6, of the New York Constitution — the same claims raised here. Justice Levine's analysis included findings that no fundamental rights were impaired, that Noach Dear had no vested right to either run for Council or hold such office, that the district voters' rights to choose the candidate of their choice was not unconstitutionally burdened, that there was no right to vote for a specific candidate, that no identifiable class of voters were disenfranchised, that a conceivable and legitimate interest need only be shown in support of Local Law 27, and that as applied to Noach Dear said law had a rational basis of making elections more competitive, bringing fresh views to public office, and eliminating abuses from unlimited tenure in public office. Id. at 13-16. [ Page 11]

Pursuant to Election Law § 6-122, which prohibits the designation of a person who would be ineligible to be elected or would not meet the qualifications for holding office, Justice Levine granted the application of Fern Weinreich and Simcha Felder to invalidate the petition to place Noach Dear on the ballot. Id. at 17. Noach Dear then filed an amended complaint here alleging virtually the same causes of action that were dismissed by Justice Levine. Four purported voters from the 44th Council District joined in Dear's suit. Although these voters were not formally parties to the state court proceedings, the arguments they put forth do not differ in substance from the contentions argued by Noach Dear before the state court.

In the interim, the Appellate Division unanimously affirmed the order invalidating the petition to place Mr. Dear on the ballot, holding that:

[c]ontrary to the contention of the appellant, Noach Dear, New York City Charter § 25(a), as amended by Local law No. 27 (2002) of City of New York, and New York City Charter § 1138 preclude him from running for office again until 2005. Further, these provisions, as applied to him, did not violate his constitutional rights, as he does not have a fundamental right to be a candidate (see Matter of Roth v. Cuevas, 158 Misc.2d 238, 252, aff'd 197 A.D.2d 369, aff'd 82 N.Y.2d 791). The appellant's remaining contentions are without merit.
Dear v. Board of Elections, — N.Y.S.2d —, 2003 WL 21982423 (N.Y.A.D.2d Dep't Aug. 19, 2003).



Defendants argue that plaintiffs' claims should be dismissed under the doctrines of res judicata and Collateral Estoppel. `"Under the traditional rules of Res Judicata a valid, final judgment, rendered on the merits, constitutes an absolute bar to a subsequent action between the [ Page 12]

same parties, or those in privity with them, upon the same claim or demand. It operates to bind the parties both as to the issues actually litigated and determined in the first suit, and as to those grounds or issues which might have been, but were not, actually raised and decided in that action. The first judgment, when final and on the merits, thus puts an end to the whole cause of action.'" Epperson v. Schneider, 242 F.3d 100, 109 (2d Cir. 2001) (quoting Saylor v. Lindsley, 391 F.2d 965, 968 (2d Cir. 1986) (citation omitted)).

Migra v. Warren City, 465 U.S. 75, 81 (1984), requires a federal court to give to a state court judgment "the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Under New York law, "parties are precluded from raising in a subsequent proceeding any claim they could have raised in the prior one, where all of the claims arise from the same underlying transaction." Schultz v. Williams, 44 F.3d 48, 54 (2d Cir. 1994); see also Smith v. Russell Sage College, 54 N.Y.2d 185, 192, 445 N.Y.S.2d 68, 429 N.E.2d 746 (1981); O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429N.E.2d 1158 (1981); In re Reilly v. Reid, 45 N.Y.2d 24, 29, 407 N.Y.S.2d 645, 379 N.E.2d 172 (1978). So long as the "same gravamen of the wrong" is at issue, the prior judgment is conclusive upon the parties, regardless of whether the subsequent action involves some variation in the facts alleged, Reid, 45 N.Y.2d at 29, 407 N.Y.S.2d 645, 379 N.E.2d 172, or proceeds on legal theories which might have been litigated in the earlier action but were not. Preclusion can be avoided only if the party seeking access to federal court demonstrates it was denied a "full and fair opportunity to litigate" the claims in question in the prior proceeding. Kremer v. Chemical Construction Corp., 456 U.S. 461, 480-81 & n. 22 (1982); Allen v. McCurry, 449 U.S. 90, 95 (1980).

Applying these principles, the Second Circuit has held that a judgment rendered against a [ Page 13]

candidate by a New York State proceeding ordinarily will bar that candidate from bringing a subsequent civil rights action in federal court, even if the constitutional claims asserted in federal court were not raised in the state court proceeding. Golkin v. Abrams, 803 F.2d 55 (2d Cir. 1986) (reversing on res judicata grounds district court's preliminary injunction order directing Board to place candidate's name on September 1986 primary ballot). Noach Dear unsuccessfully raised all of the claims at issue in the present case (including the constitutional claims) before the New York Supreme Court and the Appellate Division. Accordingly, the present action by him is barred by the doctrine of res judicata.

A more difficult question arises with respect to the plaintiff voters, who were not formally a party to the state court proceedings. As a general matter, "a judgment in a prior action is binding not only on the parties to that action, but on those in privity with them." Schultz, 44 F.3d at 54 (quoting Green v. Santa Fe Indus., Inc., 70 N.Y.2d 244, 253, 519 N.Y.S.2d 793, 514 N.E.2d 105 (1987)); see also Watts v. Swiss Bank Corp., 27 N.Y.2d 270, 277, 317 N.Y.S.2d 315, 320, 265 N.E.2d 739, 743 (1970) ("Resjudicata gives `binding effect to the judgment of a court of competent jurisdiction and prevents the parties to an action, and those in privity with them, from subsequently relitigating any questions that were necessarily decided therein.") (quoting In re Shea's Will, 309 N.Y. 605, 616, 132 N.E.2d 864, 868 (1956)). The New York Court of Appeals has stated that privity "includes those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and possibly coparties to a prior action." Watts, 21 N.Y.2d at 277, 317 N.Y.S.2d at 320, 265 N.E.2d at 743 (emphasis added). "Privity has also been found where a person so controlled the conduct of the prior litigation in which they were interested such that the result is res judicata against them." Tamily v. [ Page 14]

General Contracting Corp., 210 A.D.2d 564, 566, 620 N.Y.S.2d 506, 509 (3d Dep't 1994) (citing Green v. Santa Fe Indus., Inc., 70 N.Y.2d 244, 254, 519 N.Y.S.2d 793, 796, 514 N.E.2d 105, 108 (1987); Watts, 27 N.Y.2d at 276, 317 N.Y.S.2d at 320-21, 265 N.E.2d at 743-44), superseded, 234 A.D.2d 774, 651 N.Y.S.2d 221 (3d Dep't 1996).

This concept of privity encapsulates a notion of adequate representation coupled with the non-party's consent to have its interests represented. As the Second Circuit has explained, "one whose interests were adequately represented by another vested with authority of representation is bound by the judgment, although not formally a party to the litigation." Expert Electric, Inc. v. Levine, 554 F.2d 1227, 1233 (2d Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977). The factors which are relevant to this determination include the exercise of control by the non-party over the conduct of the litigation of the prior proceeding, Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979), an identity of interest between the non-party and the litigating party with respect to a cause of action, Kreager v. General Electric Co., 497 F.2d 468, 472 (2d Cir.), cert, denied, 419 U.S. 861, 95 S.Ct. 111, 42 L.Ed.2d 95 (1974), and the willingness of the non-party to allow its common interest to be represented. Ellentuck v. Klein, 570 F.2d 414, 425-26 (2d Cir. 1978).

Several courts have considered the issue of preclusion with respect to individual voters where the political candidates they support have already unsuccessfully challenged the questionable election statute in state court proceedings. The majority of these courts recognized that the interests and rights of voters as a class are not identical in scope or form to an individual's right to run for public office. See Tarpley v. Salerno, 803 F.2d 57, 60 (2d Cir. 1986); Schulz, 44 F.3d at 54; Kaloshi v. New York City Board of Elections, 2002 WL 31051530, *5-6 (E.D.N.Y. Sept. 6, 2002). Thus, in Tarpley, [ Page 15]

the Second Circuit held that, "[a]lthough the voters do have some community of interest with the candidates, the relationship is not close enough to be viewed as an authorization by the former to the latter to represent the voters in the legal proceedings in the state courts." Tarpley, 803 F.2d at 60. Similarly, the Schultz Court noted that "[i]t is well-settled that under circumstances such as these, voters and their interests are sufficiently independent from the candidate's that the voters' claims are not barred by the candidate's prior litigation." Scultz, 44 F.3d at 54.

These cases correctly distinguish the interests and rights of voters as a class and candidates for public office. But while the customary relationship between a candidate and his voting constituency does not per se equate to privity under res judicata principles, the inquiry must necessary pierce deeper than this superficial examination of the candidate's standing vis-a-vis the non-party voters. The present case is distinguishable from the above-referenced cases in several critical details. The most significant of these is the adequacy of representation. In all of the cases identified and relied upon by plaintiffs for the proposition that claims of voters on behalf of potential candidates are not bound by adverse decisions against the candidate themselves, the constitutional issues raised by voters in subsequent federal court proceedings were never actually litigated in state court. In Kaloshi, the plaintiff candidates did not raise any federal constitutional claims before the state court, much less constitutional claims on behalf of voters. Kaloshi, 2002 WL 31051530, at *6. Thus, Judge Johnson did not consider whether voters who were not party to the state court proceedings should nonetheless be bound by a state court's decision regarding the constitutionality of a challenged election regulation. Instead, he considered the separate and distinct question of whether voters had independent Article III or third party standing to challenge the constitutionality of a statute regulating the eligibility requirements for petitioning candidates. Id. Analogously, the [ Page 16]

candidates in Schultz raised no challenge to the constitutionality of the voter registration list statute and ballot nomination petition statute in state court. Schultz, 44 F.3d at 50-51. Although the candidates in Tarpley did raise constitutional claims in the state court proceeding, these claims were grounded solely on the rights of the plaintiff candidates, not the independent rights of voters. Tarpley, 803 F.2d at 59; Matter of Rubinstein v. Board of Elections of the State of New York, 506 N.Y.S.2d 121 (3d Dep't. 1986), permission to appeal denied, 68 N.Y.2d 605, 506 N.Y.S.2d 1029, 497 N.E.2d 968 (1986). Under such circumstances, where the distinct claims of the voters were never litigated or even referenced in state court, it can scarcely be averred that the voters' interests were adequately, or even nominally, represented in the earlier proceeding.

In contrast, the plaintiff voters in this case articulate claims virtually identical to those advanced before the New York Supreme Court. Constitutional issues were briefed, argued, and ruled upon by Justice Levine, not only with respect to Noach Dear, but also, in considerable detail, with respect to the voters of Council District 44 (including plaintiff voters). Indeed, the memorandum of law submitted in this proceeding is merely a duplication of the state court memorandum of law with a new cover page substituted. Both contained the following arguments pertaining to the rights of the voters as distinct from the rights of Noach Dear:

Accordingly, when he left office at the end of December 2001, Noach Dear had the right to run, and the voters had the right to vote for him, for the City Council term commencing January 1, 2004. Put another way, on December 31, 201, Noach Dear had the right to enter the September 9, 2003 Democratic Party primary election, and Democratic Party voters had the right to vote for him on September 9, 2003.
That right is being exercised. By Noach Dear. And by the approximately 3000 Democratic voters of the Council district who signed his designating petition and desire to vote for him in September.
(Dear Mem. of Law, State Supreme Court, pp. 10-11)(emphasis added). [ Page 17]

If, on the other hand, this Court properly reverses the Board's improper ruling, Noach Dear's presumptively valid designating petitions will allow him to appear on the ballot so that Democrats can vote for him in the September 9, 2003 primary.
(Dear Mem. of Law, State Supreme Court, p. 16)(emphasis added).

Thus, Noach Dear and the voters of the district who relied on the original law in 2001, cannot be have [sic] their rights retroactively taken away.
(Dear Mem. of Law, State Supreme Court, p. 40)(emphasis added).

After all, Noach Dear's First Amendment and Fourteenth Amendments right to run for office and the Democratic enrottees' right to vote would be improperly infringed upon if the law was retroactively applied.
(Dear Mem. of Law, State Supreme Court, p. 43)(emphasis added).

In the instant case, Noach Dear is challenging Local Law 27's constitutionality as it applies to him and the voters of his district, particularly those 3000 Democratic enrollees who signed his designating petition.
Simply stated, Noach Dear and the district voters enjoy certain constitutional protections as a candidate and as voters under the First and Fourteenth Amendment to the United States Constitution and under Article I, Sec. 1 of the New York State Constitution, For Local Law 27 to constitutionally apply to him and these voters, and bar him from the ballot and disenfranchise the district voters from voting for a candidate of their choice (particularly his 3000 petition signers), the City must demonstrate that it has a rationale for Local Law 27 to apply to him sufficient to override the infringement to his and their rights.
(Dear Mem. of Law, State Supreme Court, pp. 44-45)(emphasis added).

In the case at bar, the magnitude of injury to Noach Dear, the 3000 Democrats who signed his petitions and the voters of his district could obviously not be greater should Local Law 27 be applied to him and he were stricken from the ballot. Noach Dear's right to run, the voters' impacted right to vote, their rights to associate, his due process and equal protection rights, all have been eviscerated completely by this unintended and retroactive application of Local Law 27.
(Dear Mem. of Law, State Supreme Court, p. 49)(emphasis added).

Similarly, there is no rationale to infringe upon the 3000 petition signers or the district voters' First and Fourteenth Amendment right to vote for Noach Dear. [ Page 18]
As such, inasmuch as there is no countervailing "state interest" to offset the infringement upon Noach Dear and the district voters' First and Fourteenth Amendment rights, this Court should find that Local Law 27 is unconstitutional as applied to Noach Dear.
(Dear Mem. of Law, State Supreme Court, pp. 51-52)(emphasis added).

After oral argument before Justice Levine on August 4, 2003, counsel for Noach Dear submitted a reply memorandum of law in letter form, including the following arguments raised by the plaintiff-voters herein:

Candidates and voters' state and federal constitutional rights come into play in the electoral process. Running for office is in and of itself a constitutionally protected activity with an impact upon voters' rights within the context of the right of government to regulate the election process.
(Dear Reply Mem., State Supreme Court, p.4)(emphasis added).

Here, preventing Noach Dear from running for office, and preventing the 3000 enrolled Democrats who signed his petition from voting for him, is as serious an injury as there can be.
(Dear Reply Mem., State Supreme Court, p.4)(emphasis added).

Accordingly, the infringement upon the constitutionally protected rights of speech and association of Noach Dear, and the impacted rights of speech and association of the petition signers and voters in the district, may not be allowed by this Court.
(Dear Reply Mem., State Supreme Court, pp. 5-6)(emphasis added).

On appeal from Justice Levine's decision, Noach Dear continued to exhaustively advocate the position of the plaintiff voters both orally and in writing. In the brief submitted to the New York Appellate Division, Second Department, Mr. Dear vigorously pursued a constitutional challenge to Local Law 27 based on the rights of voters in the 44th Council District. Indeed, one of the two point headings contained in the brief specifically referenced the interests of the voters: [ Page 19]

(Appellate Division Brief for Petitioner-Appellant Noach Dear, at 1, 37). Moreover, Mr. Dear explicitly declared that he challenged the constitutionality of the statute on behalf of the voters as well as himself:

In the instant case, plaintiff-appellant has challenged Local Law 27's constitutionality as it applies to him, and the consequent impact on the voters of his district, particularly those 3000 Democratic enrollees who signed his designating petition.
(Id. at 38).

Given the systematic and thorough prosecution of these constitutional claims throughout the state court proceedings — the identical claims articulated before this court — it is beyond doubt that the interests of the plaintiff voters, though distinct from the interests of Noach Dear, were competently and adequately represented by Noach Dear's presentation to the New York Supreme Court.

Although "identity of interests is virtually essential for a finding of privity, . . . such identity by itself may not be sufficient to establish privity." Ferris v. Cuevas, 118 F.3d 122, 128 (2d Cir. 1997). Rather, some additional connection is necessary demonstrating either authorization or control by the non-party. See Id. (finding privity where non-party's "involvement in and control of every aspect of both the state and federal actions presents a connection of much greater magnitude than identity of interest alone"). A significant connection between the parties in this case is the assistance rendered by Raymond Dowd, attorney for the plaintiff voters, to Noach Dear's state court litigation. The New York Court of Appeals has deemed the fact that both parties were represented by the same [ Page 20]

lawyer of "singular significance" in determining privity. Watts, 27 N.Y.2d at 278, 317 N.Y.S.2d at 321,265 N.E.2d at 744. While the Second Circuit has adopted the more cautious position that this factor alone is "not conclusive," it places great weight on the overlap and coordination of legal counsel and has found privity where the attorney or attorneys for both parties "formulated an overarching strategy for the two actions." Ruiz v. Commissioner of the Department of Transportation of the City of New York, 858 F.2d 898, (2d Cir. 1988); see also Ferris, 118 F.3d at 128.

The evidence here demonstrates a level of collaboration and joint effort between counsel for Noach Dear and the plaintiff voters that strongly suggests both unity of interest and implicit, if not actual, authorization by the voters for Dear to represent their interests in state court. Indeed, the evidence suggests that the voters were de facto plaintiffs in the New York State proceeding. Counsel for the plaintiff voters admits that he participated in the research and drafting of Dear's submissions to the state court. Indeed, the memorandum of law submitted jointly by Noach Dear and the voters in this case was identical to the memorandum Dear submitted to Justice Levine in the New York Supreme Court. As further evidence that the plaintiff-voters in this action consented to have their claims adjudicated in State Supreme Court is the fact that their attorneys, Dowd & Marotta, LLC, signed the memorandum of law submitted by Dear in state court dated August 1, 2003, the day following the commencement of their lawsuit in this district. Thus, at the same time counsel was representing the plaintiff voters in federal court, he was simultaneously collaborating with Noach Dear in his presentation to the state court — a presentation which encompassed not only Dear's rights as a potential candidate for public office, but also the voters' right to elect the candidate of their choice. Dowd's interactions with Noach Dear's state court eligibility action predating the commencement of the federal suit is further evidence of privity. See Ferris, 118 F.3d at 129 (holding [ Page 21]

that the state and federal plaintiffs' relationship pre-dating the federal action, including "actual communication about the course of the litigation[,] . . . support[ed] a finding of privity between the plaintiffs").

While voters as a class may have constitutional interests distinct from political candidates when faced with a law that implicates ballot access or restrictions on qualifications for holding public office, the concerted prosecution of Noach Dear's eligibility petition belies even the appearance of separation with respect to the individual plaintiff voters in this case. The actions of plaintiffs' attorneys suggest a carefully orchestrated "overarching strategy" that is sufficient to find the plaintiff voters in privity with Noach Dear. As in Ruiz, this is not a case where the plaintiff voters, who were not a formal party to the state action, "have had no chance to pursue their claims aggressively." Ruiz, 858 F.2d at 904. Rather, it is a naked attempt to secure two bites at the same apple that is inconsistent with the important role of res judicata in "conserv[ing] judicial resources by discouraging redundant litigation." Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 485-86, 414 N.Y.S.2d 308, 386 N.E.2d 1328 (1979). Plaintiff voters, through their attorney's coordinated participation with Noach Dear's eligibility petition before the New York Supreme Court, have vigorously contested the constitutionality of Local Law 27. They must now abide by the results of that effort.*fn1 [ Page 22]


Even assuming that plaintiffs were not barred by res judicata from relitigating the same issues already resolved by Justice Levine and the Appellate Division, their constitutional claims are without merit. The statute at issue in this case is akin to a term-limit regulation, as Local Law 27 is essentially a narrowly drawn amendment designed to correct a flaw in the original referendum altering the New York City Charter to impose term limits on the office of City Council. Specifically, Local Law 27 addressed the anomalies created by New York's decennial redistricting and the two consecutive two-year terms of office that accompany this process every twenty years. Recognizing the discrepancy this situation created for City Council members serving during periods of redistricting, Local Law 27 merely clarifies that Charter § 1138 was not intended to apply different term restrictions to Council members affected by redistricting. State laws regulating term limits for public officials have been almost universally upheld. See Chimento v. Stark, 414 U.S. 802 (1973) (summarily affirming New Hampshire's seven-year durational residency requirement for candidacy); (Bates v. Jones, 131 F.3d at 847 (upholding California's life time ban for elected state officials after they served a limited number of terms (two or three depending on the office)); Citizens for Legislative Choice v. Miller, 144 F.3d 916 (1998) (upholding constitutionality of Michigan's lifetime term limits ban imposed on state legislators). Courts have identified the significant interest states have in enacting term limits to open up the political process and ensure competitive elections, and have determined that these interests outweigh any constitutional burdens to potential candidates and voters. As the Ninth Circuit held in Bates, "term limits on state officeholders is a neutral candidacy qualification, such as age or residence, which the State certainly has the right to impose." Bates, 131 [ Page 23]

F.3d at 847 (citing Burdick, 504 U.S. at 433). The New York Court of Appeals has also held that, "[a]bsent any express constitutional limitation, the legislature has full and unquestionable power to abolish an office of its creation or modify its term . . . even though the effect may be to curtail an incumbent's unexpired term." Lanzav. Wagner, 11 N.Y.2d 317, 324 (1962). See also Bates, 131 F.3d at 847-48 (O'Scannlain, J., concurring) (discussing "compelling authority that a state's adoption of term limits on its own government's elected officials fails to raise a substantial federal question").

Local Law 27 does not impose a burden as significant as the regulations upheld in the aforementioned cases. It does not enact a permanent bar on a former Council member's eligibility to serve again, nor does it impose significant hurdles on an individual's access to the ballot. It merely levels the waiting period for term-limited former Council members to four years, a period already approved by the voters of the City of New York by referendum, and upheld by the New York Appellate Division. See In re Golden, 762 N.Y.S.2d at 410-413. See also Clements v. Fashing, 457 U.S. 957, 967 (1982) ("A `waiting period' is hardly a significant barrier to candidacy."). As the Appellate Division noted, Local Law 27 "merely amended the term-limit provision of the City Charter without changing the length of the term of office or curtailing any power of the office," and was a narrowly tailored response to the problem created by redistricting after the result of each decennial census. Golden, 762 N.Y.S.2d at 413.

Under these circumstances there is no basis for a challenge the City's right to set or amend the term limits of its Council members. Indeed, plaintiffs do not argue otherwise. Plaintiffs' counsel conceded at oral argument that Local Law 27 would have been constitutional if its provisions were contained in the original term-limits referendum, or if the City Council had enacted Local Law 27 with the express intention and purpose of extending the waiting period to four years to further the [ Page 24]

legitimate goal of leveling the waiting period for all candidates. Instead, plaintiffs rely solely on the subtle distinction of when and in what manner the legislature's rationale for enacting a statute regulating an election for public office must be expressed.

Specifically, plaintiffs argue that when the City Counsel enacted Local Law 27, it did so for the sole purpose of allowing several sitting Council members who had served only six years to run for another two year term even though the plain language of the term limits referendum barred their continued service. Because the City Council did not intend to increase the waiting period from two to four years for candidates similarly situated to Noach Dear, Local Law 27 — as applied to him — does not further any legitimate interest in restricting his right to run. This contention finds no statutory or precedential support. There is no requirement that legislatures must meticulously document their specific purpose for every possible application or effect of a statutory provision merely because it affects the electoral process. Nor is there any justification for plaintiffs' contention that because the City Council members who spoke about Local Law 27 did not specifically mention its applicability to the waiting period they never intended the law to have such an effect.

In a somewhat analogous context, the Supreme Court has cautioned that it is not generally the province of the judiciary to divine the motives of legislators in enacting a law that is unambiguous and constitutional on its face. Nor is it proper to extrapolate the intent or purpose of the legislature in enacting the law based on the public comments of several individual law makers:

Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress' purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What [ Page 25]
motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a `wiser' speech about it.
United States v. O'Brien, 391 U.S. 367, 383-84 (1968)(footnote omitted)(Warren, Chief Justice). O'Brien was a case in which the Supreme Court declined to strike down a facially valid statute because members of Congress indicated that the purpose of the law was to restrict free speech. Here, by contrast, silence by the City Counsel or an alternative legitimate purpose is the basis for plaintiffs' argument for invalidating an otherwise facially valid enactment. There is simply no reasonable basis for such an anomalous result.

Moreover, even accepting plaintiffs' unsupported proposition that the legislature must explicitly voice its intent and discuss every conceivable implication before it can impose any form of regulation on the electoral process, Local Law 27 was indeed supported by a legitimate purpose that was expressly articulated by the City Council. Contrary to plaintiffs' attenuated perspective and unduly narrow view, the rationale for enacting Local Law 27 was not merely to "allow sitting Council Members who had served two full consecutive terms . . . which obviously total six years, to run for another two-year term." (Plaintiffs' Reply Memo at 11). Rather, the justification was a more general purpose of fixing the anomalies created by redistricting that resulted in the term limits being applied disproportionately to some City Council members over others. This intention is clearly articulated in the legislative record. Indeed, the record is replete with instances of Council members pointing out that there was no logical reason for the term limit restrictions of New York Charter § 25(a) to be applied disparately solely because of the implications of redistricting. This same [ Page 26]

rationale supports Local Law 27's equalization of the waiting period to four years for all former Council members. The inequitable waiting period arising once every twenty years was clearly an anomaly created by decennial redistricting — and thus within Local Law 27's intended purview. Consequently, Local Law 27's clarification of the waiting period for term-limited former City Council members does not impose an unconstitutional burden on ballot access and voter rights.

Nor is the application of Local Law 27 retroactive with respect to Noach Dear. Local Law 27 became active on Sept. 25, 2002. Noach Dear was not a prospective candidate for the office of City Council at that time, as his designating petition was not submitted to the Board of Elections until July 10, 2003. Dear did not possess any "vested interest" in running for re-election to the New York City Counsel when he left office in 2001. If retroactivity could be established merely on the grounds that the prospective candidate had previously served in the affected office and had some vague intention of returning in the future, then any statute affecting term limits, waiting periods, or even candidate eligibility requirements could be successfully challenged as a violation of the constitution. This is simply not the case. Moreover, on Nov. 5, 2002, several months after the effective date of Local Law 27, Dear ran as a candidate for the office of State Senator on the Conservative Party line — an action clearly inconsistent with an intent to serve as a member of the New York City Council for the term beginning January 1, 2004.

Plaintiffs equal protection claim must likewise fail, as Local law 27 is neutral on its face and its waiting period applies to all council members who have previously served two consecutive four-year terms. There is no allegation that the statute was specifically and insidiously aimed at keeping Noach Dear off the ballot — indeed, this would be inconsistent with plaintiffs' contention that the City Council did not even contemplate the idea of increasing the waiting period when it enacted [ Page 27]

Local Law 27. Nor can there be any allegation of selective enforcement, since Noach Dear is the only former Council member seeking to return to office after sitting out only two years. The fact that none of Dears' colleagues chose to run in this year's election is not evidence that Local Law 27 is being selectively applied. It does, however, illustrate that Dear cannot make the requisite showing of the Law being enforced against him but not against a similarly situated potential candidate. In sum, Local Law 27 is a facially neutral regulation of term limits for public officials supported by a legitimate governmental purpose. In the absence of any evidence of selective application, plaintiffs cannot sustain a cause of action for a violation of the Equal Protection Clause of the United States Constitution.

The remainder of plaintiffs' constitutional arguments, resting on the premise that there is no legitimate or even rational governmental interest supporting Local Law 27, are also without merit. Claims grounded on state law are beyond the purview of this Court and are best resolved by the New York Supreme Court, which has already adjudicated the merits of each of plaintiffs' state law causes of action.*fn2 [ Page 28]


Plaintiffs' application for a preliminary injunction declaring that his designating petition is valid is denied. Defendants' motion to dismiss the action is granted.


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