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DEAR v. BOARD OF ELECTIONS

August 25, 2003

NOACH DEAR, CANDIDATE FOR THE OFFICE OF MEMBER OF THE NEW YORK CITY COUNCIL OF THE CITY OF NEW YORK IN THE DEMOCRATIC PARTY PRIMARY ELECTION TO BE HELD SEPTEMBER 9, 2003 FROM THE 44TH COUNCIL DISTRICT OF THE CITY OF NEW YORK, KINGS COUNTY; BOYD BEVERLYN, MARY TURNER, SARAH L. SCHERMAN, YITZCHOK Z. SCHERMAN, DULY ENROLLED OF THE DEMOCRATIC PARTY RESIDING IN THE 44TH CITY COUNCIL DISTRICT OF THE CITY OF NEW YORK, PLAINTIFFS, -AGAINST- THE BOARD OF ELECTIONS IN THE CITY OF NEW YORK, STEPHEN WEINER, WEYMAN A. CAREY, MICHAEL J. CILMI, NERO GRAHAM, JR.; DOUGLAS A. KELLNER, TERRENCE C. O'CONNOR, FREDERIC M. UMANE, VINCENT J. VELELLA, COMMISSIONERS OF THE BOARD OF ELECTIONS OF THE CITY OF NEW YORK, AND MICHAEL BLOOMBERG, IN HIS CAPACITY AS MAYOR OF NEW YORK, AND THE CITY COUNCIL OF NEW YORK, SIMCHA FELDER, CANDIDATE FOR THE OFFICE OF MEMBER OF THE NEW YORK CITY COUNCIL OF THE CITY OF NEW YORK IN THE DEMOCRATIC PARTY PRIMARY ELECTION TO BE HELD SEPTEMBER 9, 2003 FROM THE 44TH COUNCIL DISTRICT OF THE CITY OF NEW YORK, KINGS COUNTY, DEFENDANTS


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

MEMORANDUM AND ORDER

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.

BACKGROUND

TERM LIMIT REFERENDUM

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.

LOCAL LAW 27

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").

THE EFFECT OF LOCAL LAW 27 ON NOACH DEAR

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.

NEW YORK STA TE COURT PROCEEDINGS

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 ยง 16-102, which requires the judicial proceeding to be commenced within 14 days ...


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