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Westcott v. Warren County Board of Supervisors

United States District Court, N.D. New York

April 27, 2017

MARK WESTCOTT; G. TRAVIS WHITEHEAD; DOUG IRISH; WILLIAM MAHAR; AVA ASHENDORFF; and ROBERT SCHULZ, Plaintiffs,
v.
WARREN COUNTY BOARD OF SUPERVISORS, Defendant.

          MARK WESTCOTT Plaintiff, Pro Se.

          G. TRAVIS WHITEHEAD Plaintiff, Pro Se.

          DOUG IRISH Plaintiff, Pro Se.

          WILLIAM MAHAR Plaintiff, Pro Se.

          AVA ASHENDORFF Plaintiff, Pro Se.

          ROBERT SCHULZ Plaintiff, Pro Se.

          HON. BRIAN REICHENBACH Warren County Attorney Counsel for Defendant.

          BRIAN REICHENBACK, ESQ. County Attorney MARY ELIZABETH KISSANE, ESQ. Assistant County Attorney.

          DECISION AND ORDER

          Hon. Glenn T. Suddaby Chief U.S. District Judge.

         Currently before the Court, in this voting rights action filed by the six above-captioned individuals (“Plaintiffs”) against the Warren County Board of Supervisors (“Defendant” or “Board of Supervisors”), are the parties' cross-motions for summary judgment. (Dkt. Nos. 18, 25.) For the reasons set forth below, Plaintiffs' motion[1] is denied; and Defendant's cross-motion is granted.

         I. RELEVANT BACKGROUND

         A. Plaintiff's Claims

         Generally, liberally construed, Plaintiffs' Verified Complaint alleges that Defendant has enacted apportionment legislation under which members of the Warren County Board of Supervisors (who are elected by their towns and wards) exercise their voting power arbitrarily and discriminatorily (weighting their votes at monthly Board meetings based on the varying populations of their respective towns and wards, some of which constitute single-member districts that by definition vote as a bloc and other of which constitute multi-member districts that often do not vote as a bloc, but not weighing their votes at more-frequent committee meetings) rather than rationally and equally (based on substantially equal populations that would result from drawing certain new districts as proposed by Plaintiffs). (See generally Dkt. No. 1 [Plf.'s Compl.].)

         Generally, based on these allegations, the Verified Complaint claims that Defendant has violated the “one person, one” vote principle of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution, and Article I, Section 11 of the New York State Constitution. (Id.)

         Generally, as relief, the Verified Complaint requests a judgment declaring that the Warren County Board of Supervisors is unconstitutionally apportioned, that Waren County must submit a proposed reapportionment plan within ninety days, and that the reapportionment plan proposed by Plaintiff “meets [with] Court Acceptance.” (Id.)

         Familiarity with the particular nature of the Verified Complaint's factual allegations, claims and request for relief is assumed in this Decision and Order, which is intended primarily for the review of the parties. (Id.)

         B. Parties' Arguments on Their Cross-Motions for Summary Judgment

         1. Plaintiffs' Memorandum of Law

         Generally, in support of their motion, Plaintiffs assert two arguments. (See generally Dkt. No. 18, Attach. 19 [Plfs.' Memo. of Law].)

         First, Plaintiffs argue, based on the current record, a rational fact finder must conclude that Defendant's apportionment and weighted voting legislation violates the Fifth and Fourteenth Amendments for the following reasons: (a) the mix of 15 single districts (five of which are wards within the municipality of Glens Falls and have significantly different populations) and one multi-member district (the Town of Queensbury) is arbitrary and discriminatory (given the fact that, inter alia, fewer representatives are elected per person in the multi-member Town of Queensbury district than in the single-member districts, and the fact that, even with weighted voting, Queensbury representatives seldom vote as a bloc while a single-member town by definition votes as a bloc); and (b) the mix of weighted voting (at monthly Board meetings) and unweighted voting (at more-frequent committee meetings, in which resolutions are passed for consideration by the Board, where they stand a 98% chance of passing) is arbitrary and discriminatory. (Id.)

         Second, Plaintiffs argue, Defendant's legislative apportionment can be rendered constitutional by eliminating weighted voting and multi-member districts as the vast majority of counties in the State of New York have done, and instead approving (and indeed imposing if necessary) Plaintiffs' proposed reapportionment plan, which (a) combines ten of the smaller towns into three districts that approximate the size of moderately sized towns, and (b) divides Queensbury into four wards (and re-divides Glens Falls into two wards) that also approximate the size of moderately sized towns. (Id.)

         2. Defendant's Opposition Memorandum of Law

         Generally, in opposition to Plaintiffs' motion and in support of its own cross-motion, Defendant asserts four arguments. (See generally Dkt. No. 25, Attach. 3 [Def.'s Opp'n Memo. of Law].)

         First, Defendant argues, as a threshold matter, the claims of five of the six Plaintiffs should be dismissed for lack of standing, for the following reasons: (a) while the road frontage of the parcel on which Plaintiff Schultz lives is in Warren County, the residential structure on the parcel is located in Washington County; (b) Plaintiffs Westcott, Whitehead and Irish are residents of the Town of Queensbury, which is actually over-represented on the Board; and © Plaintiff Ashendorf does not have standing in that she is a resident of the Town of Chester, which is not under-represented on the Board. (Id.)

         Second, Defendant argues, with regard to Plaintiffs' second argument, the Complaint's request for relief (i.e., the Court's approval of Plaintiffs' proposed reapportionment plan, should the Court find that Warren County's current form of government and proposed alternatives do not satisfy constitutional requirements) raises a non-justiciable political question that should be resolved through the political process set forth in N.Y. Alternative County Government Law § 651, which allows the voters of the County to determine the form of government they prefer (if a change is required). (Id.)

         Third, Defendant argues, with regard to Plaintiffs' first argument, Warren County's form of government satisfies constitutional requirements, for the following reasons: (a) the committee system as established and practiced by Warren County is statutorily and constitutionally proper (in that, inter alia, such a committee system was approved by the Second Circuit in Roxbury Taxpayers Alliance v. Delaware Cnty. Bd. of Supervisors, 80 F.3d 42');">80 F.3d 42, 45 [2d Cir. 1996], and indeed under the system a single supervisor can and often does advance a resolution to the full Board of Supervisors for a vote regardless of committee action on the proposal, and in any event, no action can be taken on any proposed resolution except upon a majority of the weighted vote of the full voting strength of the Board); and (b) Warren County's Board of Supervisors' weighted voting rules achieve the one-person-one-vote standard required by the Constitution (in that Warren County's rules survive the quantitative inquiry used by the Second Circuit in Roxbury and Morris v. Bd. of Estimate, 831 F.2d 384');">831 F.2d 384 (2d Cir. 1987), Warren County's rules survive the qualitative inquiry used in Roxbury, [2] and Warren County's government is a constitutionally permitted method to preserve traditional political subdivisions within the County which sometimes have distinct interests). (Id.)

         Fourth, Defendant argues, Plaintiff's motion should be denied because it violates Local Rule 7.1 of the Local Rules of Practice for the Court in that, rather than citing to competent record evidence, the factual assertions contained in Plaintiffs' Rule 7.1 Statement largely cite to record sources that are improper, without authority or without foundation. (Id.)

         3. Plaintiffs' Reply/Opposition Memoranda of Law

         a. Plaintiffs Westcott, Whitehead, Irish and Ashendorff's Reply/Opposition Memorandum of Law

         Generally, in reply to Defendant's opposition, and in opposition to Defendant's memorandum of law-in chief, Plaintiffs Westcott, Whitehead, Irish and Ashendorff assert four arguments. (See generally Dkt. No. 27 [Plfs. Westcott, Whitehead, Irish and Ashendorff's Reply Memo. of Law].)

         First, they argue, with regard to Defendant's first argument, Plaintiffs concede that Plaintiff Schultz appears to lack standing and continue to argue that Plaintiff Ashendorf has standing; however, the issue of standing is moot because (a) one of the six Plaintiffs (i.e., Plaintiff Mahar) has standing, and (b) lack of standing of other plaintiffs is irrelevant where, as here, the plaintiff with standing does not seek monetary relief but seeks only declaratory relief. (Id.)

         Second, they argue, with regard to Defendant's second argument, Plaintiffs' Complaint does not present a non-justiciable political issue when one balances the six factors set forth by the Supreme Court in Baker v. Carr, 369 U.S. 186 (1962); and, in any event, Defendant's solution to that problem is reliance on an arcane legal method, which approach is strongly disfavored by the Supreme Court. (Id.)

         Third, they argue, with regard to Defendant's third argument, by relying on the Roxbury and Morris decisions (which are distinguishable from our case), Defendant neglects to rebut the failure of the “Rockland County experiment” (which used mixed multi-member districts), and Defendant also neglects to sufficiently rebut Plaintiffs' argument that, even with weighted voting, Queensbury representatives seldom vote as a bloc while a single-member town by definition votes as a bloc. (Id.)

         Fourth, they argue, with regard to Defendant's fourth argument, Plaintiffs Westcott, Whitehead, Irish and Ashendorff's admission of the facts asserted in Defendant's Rule 7.1 Statement obviates the need to deny Plaintiffs' motion on the ground of various deficiencies in their own Rule 7.1 Statement. (Id.)

         b. Plaintiff Mahar's Reply/Opposition Memorandum of Law

         Generally, in reply to Defendant's opposition, and in opposition to Defendant's memorandum of law-in chief, Plaintiff Mahar assert two arguments. (See generally Dkt. No. 28 [Plf. Mahar's Reply Memo. of Law].)

         First, Plaintiff Mahar argues, with regard to Defendant's second argument, Plaintiffs' Complaint presents a justiciable issue when one balances the six factors set forth by the Supreme Court in Baker v. Carr, and, in any event, Defendant's solution to that problem is reliance on an arcane legal method. (Id.)

         Second, Plaintiff Mahar argues, a genuine dispute of material fact exists that precludes the granting of Defendant's cross-motion for summary judgment, because (a) the question exists of whether the current weighting method creates any “dummy” members whose weighted votes are unable to affect the outcome of a vote, and (b) the issue of whether the multi-member district of Queensbury operates to minimize or cancel out the voting strength of any racial or political elements of the voting population by significantly under-representing such political element(s) is “best settled at trial.” (Id.)

         c. Plaintiff Schulz's Reply/Opposition Memorandum of Law

         Generally, in reply to Defendant's opposition, and in opposition to Defendant's memorandum of law-in chief, Plaintiff Schulz argues that he has standing for three reasons: (1) despite the fact that Plaintiff Schulz has been removed from the Warren County voter registration roles, he is in fact qualified to register to vote, and to vote, in Warren County; (2) he has standing to assert a claim under N.Y. General Municipal Law § 51; and (3) he also has standing to obtain relief under N.Y. Finance Law § 123-b.1. (See generally Dkt. No. 36 [Plf. Schulz's Reply Memo. of Law].)

         4. Defendant's Sur-Reply/Reply Memorandum of Law

         Generally, in sur-reply to Plaintiffs' replies, and in reply to Plaintiffs' oppositions, Defendant assert three arguments. (See generally Dkt. No. 41 [Def.'s Sur-Reply/Reply Memo. of Law].)

         First, Defendant argues, Plaintiffs Westcott, Whitehead, Irish and Ashendorff's reliance on the Southern District of New York's case of Abate v. Rockland Cnty. Legislature, 964 F.Supp. 817 (S.D.N.Y. 1997), is misplaced, because (a) the Southern District (whose decision, incidentally is not binding on this Court) was expressly not applying a weighted voting formula or deciding its constitutionality (but was applying the traditional formula for calculating the extent of deviation from voter equality), and (b) in any event, a year after the Southern District issued its decision in Rockland County, the Second Circuit issued its decision in Reform of Schoharie Cnty. v. Schoharie Cnty. Bd. of Supervisors, 152 F.3d 920 (2d Cir. 1998), in which it continued to rely on its reasoning in Roxbury. (Id.)

         Second, Defendant argues, its “at-large” supervisory system in Queensbury is constitutional, because (a) Plaintiffs' argument about bloc voting versus non-bloc voting has been rejected by both the United States Supreme Court and New York Court of Appeals, which require a showing of a “built-in bias tending to favor particular political interests or geographic areas” (which showing has not been made here), and (b) in any event, Plaintiffs' argument about bloc voting versus non-bloc voting confuses their right to vote for representatives members of the legislative body (which is constitutionally guaranteed) with a right to have those representatives vote a certain way (which is not constitutionally guaranteed). (Id.)

         Third, Defendant argues, Plaintiff Schulz lacks standing, because (a) the two cases on which Schulz relies are distinguishable, and (b) a case involving a situation analogous to Schulz's factual situation supports a finding that he is not resident of Warren County. (Id.)

         C. Undisputed Material Facts on Parties' Cross-Motions

         1. Undisputed Material Facts on Plaintiffs' Motion

         Unless otherwise noted, the following facts were asserted and supported with accurate record citations by Plaintiffs' in their Statement of Material Facts (“Plfs.' Rule 7.1 Statement”) and expressly admitted (or not denied with a supporting specific record citation) by Defendant in its response thereto (“Def.'s Rule 7.1 Response”). (Compare Dkt. No. ...


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