| Yatauro v Mangano |
| 2011 NY Slip Op 06230 [87 AD3d 582] |
| August 9, 2011 |
| Appellate Division, Second Department |
| Diane Yatauro et al.,Plaintiffs/Petitioners-Respondents-Appellants, v Edward P. Mangano et al.,Defendants/Respondents-Appellants-Respondents, and William T. Biamonte et al.,Defendants/Respondents-Respondents. |
—[*1] Jaspan Schlesinger LLP, Garden City, N.Y. (Steven R. Schlesinger and Hale Yazicioglu ofcounsel), 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.
In a hybrid action, inter alia, for a judgment declaring, among other things, that theimplementation of Local Law No. 3-2011 of County of Nassau in connection with the generalelection to be held on November 8, 2011, is null and void, and proceeding pursuant to CPLRarticle 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 MarieWalker, individually and in their capacity as members of the Nassau County Legislature, WilliamJ. Muller, in his capacity as Clerk of the Nassau County Legislature, the Nassau CountyLegislature, and the County of Nassau appeal, as limited by their brief, from so much of an orderand 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 forsummary judgment on the first cause of action, granted the motion for summary judgment to theextent that it declared that the implementation of Local Law No. 3-2011 of County of Nassau inconnection with the general election to be held on November 8, 2011, is null and void for lack ofcompliance with Nassau County Charter §§ 113 and 114, and theplaintiffs/petitioners cross-appeal from so much of the same order and judgment as declared thatthe adoption of Local Law No. 3-2011 of County of Nassau is in accord with Nassau CountyCharter § 112.
Ordered that the order and judgment is reversed insofar as appealed from, on the law and thefacts, without costs or disbursements, that branch of the plaintiffs/petitioners' motion which wasfor summary judgment on their first cause of action is denied, and it is declared that thelegislative boundaries described in Annex A to the Nassau County Charter, as amended by LocalLaw No. 3-2011 of County of Nassau, must be implemented in connection with the generalelection to be held on November 8, 2011; and it is further,[*2]
Ordered that the order and judgment is affirmed insofaras cross-appealed from, without costs or disbursements.
Seven members of the Nassau County Legislature (hereinafter collectively theplaintiffs/petitioners) commenced this hybrid action/proceeding, inter alia, for a judgmentdeclaring, among other things, that the implementation of Local Law No. 3-2011 of County ofNassau (hereinafter Local Law 3-2011) in connection with the general election to be held onNovember 8, 2011, is null and void for lack of compliance with sections 112, 113, and 114 of theNassau County Charter (hereinafter the Charter). The plaintiffs/petitioners contend that LocalLaw 3-2011, which redrew the metes and bounds of the County's 19 legislative districts based onthe 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 CountyLegislature may redistrict on a decennial basis. William T. Biamonte, a Commissioner of theNassau County Board of Elections, who is named as a defendant/respondent in this hybridaction/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 11members of the Nassau County Legislature, Edward P. Mangano, in his capacity as NassauCounty 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 theappellants), 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, whichexplicitly requires the legislature to adopt a local law describing the 19 county legislativedistricts, based upon the release of decennial federal census data, within six months of publicannouncement of such census data, and that nothing contained in sections 112, 113, or 114prohibits 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 theappellants. In the order and judgment appealed and cross-appealed from, the Supreme Court heldthat 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 supportthe appellants' contention that a local law, describing the new metes and bounds of the 19districts, 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 theupcoming 2011 general election. Rather, the Supreme Court held that a plain reading of thesections establishes that the adoption of Local Law 3-2011 was simply the first of three steps tobe taken by the County Legislature before redistricting may be effectively completed, in time forthe 2013 general election. However, contrary to the plaintiffs/petitioners' contention, theSupreme Court declared that the adoption of Local Law 3-2011 did comply with therequirements of section 112.
In 1994, the Charter was significantly amended by the adoption of Local Law No. 11-1994 ofCounty of Nassau (adopted on November 8, 1994; effective January 1, 1996), which was aresponse to a constitutional challenge to the structure of the government and system of weightedvoting in Nassau County (see Jackson v Nassau County Bd. of Supervisors, 818 F Supp509 [1993]). Local Law No. 11-1994 of County of Nassau, which was adopted by publicreferendum, 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 itwith 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," werealso added to the Charter at that time to provide the process by which redistricting of thelegislative electoral districts of the County would be handled in the future, in connection with thedecennial census.
Section 112 states, in relevant part:
"1. The nineteen county legislative districts shall be set forth in the map attached hereto asAnnex A, bounded and described in said [*3]Annex A.
"2. The County Legislature shall within six months after public announcement of theenumeration of the inhabitants of Nassau County in each decennial federal census commencingwith the federal census for the year 2000, adopt a local law amending Annex A hereto to describethe nineteen county legislative districts which shall be based upon the new census data. Suchlocal law shall comply with the legal and constitutional requirements for equal representation inthe County Legislature of the residents of the county.
"3. If, as a result of a readjustment oralteration of the county legislative districts as provided in subdivision two of this section, anycounty legislator shall no longer reside within the boundary lines of the county legislative districtsuch county legislator represents, then, unless such county legislator shall, within twelve monthsof the effective date of such readjustment or alteration, change such person's residence so as toreside within the boundary lines of such county legislative district, such county legislator shallcease to hold such office, and the vacancy in such office shall be filled in the manner provided insection 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 eachlegislative term in which the legislature is required to reapportion the county legislative districtsas a result of the federal decennial census . . . The appointment of members of thetemporary districting advisory commission shall be made no earlier than one year and eightmonths before, and no later than one year and six months before, the general election of thecounty legislators to be held in the year, two thousand and three and every ten years thereafter inaccordance with the provisions of this section . . .
"2. The temporary districting advisory commission may recommend one or more plans to thecounty Legislature for dividing the county into legislative districts for the election of countylegislators which plan shall comply with applicable law. The temporary districting advisorycommission is authorized to hire experts, counsel, consultants and staff as provided for in thebudget of the County Legislature and as the temporary districting advisory commission deemsnecessary. Agencies and departments of county government shall be required to provide technicalassistance to the commission.
"3. . . . The temporary districting advisory commission shall conduct allmeetings in accordance with applicable law and may hold public hearings to develop aredistricting plan.
"4. No later than ten months before the general election of the County Legislature, thetemporary districting advisory commission shall transmit its recommendations and any and allplans for dividing the county into districts to the County Legislature. All recommendations fromthe temporary districting advisory commission shall be available for public inspection at theoffice of the clerk of the County Legislature." (Charter § 113.)
Section 114 states, in relevant part:
"The County Legislature may reject, adopt, revise or amend the redistricting planrecommended by the temporary districting advisory commission or adopt any other redistrictingplan, provided that any plan adopted by the County Legislature shall meet all constitutional andstatutory requirements. The County Legislature, shall, no later than eight months before suchgeneral election of the County Legislature, prepare and adopt by local law a final plan for theredistricting of the County Legislature." (Charter § 114.)
In interpreting a statute, the starting point of analysis must be the plain meaning of thestatutory language, since it is the " 'clearest indicator of legislative intent' " (Matter of Pro Home Bldrs., Inc. vGreenfield, 67 AD3d 803, 805 [2009], quoting Majewski v Broadalbin-Perth Cent.School Dist., 91 NY2d 577, 583 [1998]). "A statute or legislative act is to be construed as awhole, and all parts of an act are to be read and construed together to determine the legislativeintent" (Frank v Meadowlakes Dev.Corp., 6 NY3d 687, 691 [2006], quoting McKinney's Cons Laws of NY, Book 1,Statutes § 97). The "legislative intent is to be ascertained from the words and languageused, and the statutory language is generally construed according to its natural and most obvioussense, without resorting to an artificial or forced construction" (Frank v Meadowlakes Dev.Corp., 6 NY3d at 692, quoting McKinney's Cons Laws of NY, Book 1, Statutes § 94)."Whenever practicable, the court must give effect to all the language employed; a statute must beread so that each word therein will have a meaning and not so that one word or sentence willcancel or render meaningless another word or sentence" (McKinney's Cons Laws of NY, Book 1,Statutes § 98 [a]; see Rangolan v County of Nassau, 96 NY2d 42, 47 [2001]["where . . . the Legislature uses different terms in various parts of a statute, courtsmay reasonably infer that different concepts are intended"]; see also McKinney's ConsLaws of NY, Book 1, Statutes § 231 ["In the construction of a statute, meaning and effectshould be given to all its language, if possible, and words are not to be rejected as superfluouswhen it is practicable to give to each a distinct and separate meaning"]).
Here, the Supreme Court properly declared that the adoption of Local Law 3-2011 was inaccordance with the requirements of Charter § 112. The legislature, as required, adopted alocal law amending Annex A to describe the 19 legislative districts, based upon the new censusdata, and did so within six months of the announcement of the census data.
While the Supreme Court properly held that Charter § 112 authorized the CountyLegislature to "provid[e] the new metes and bounds of [the] 19 county legislative districts basedupon the new census data," the court erred in concluding that the resultant metes and boundswould only constitute "new proposed legislative districts" (emphasis added). In reachingthis conclusion, the court overlooked a crucial term used in section 112, to wit, "amend." SinceCharter § 112 required the County Legislature to formally amend Annex A, ultimatelystriking out the prior legal description of the 19 legislative districts and inserting new legaldescriptions, we conclude that the drafters of Charter § 112 did not intend the legislature'sact to be merely a proposal, without immediate effect, subject to the completion of a three-stepredistricting process.
Our conclusion is supported by subdivision (3) of Charter § 112, which provides thatany county legislator no longer residing within the boundary lines of his or her district asreadjusted by a local law adopted pursuant to section 112 (2) "shall" move to a residence withinthe new district lines within 12 months of the "effective date of such readjustment" or cease tohold such office. The term "effective date" expressly refers to "such readjustment" which iseffected by the local law adopted pursuant to Charter § 112 (2). Thus, we do not agree withour dissenting colleagues that the term "effective date" refers to the adoption of the finalredistricting plan pursuant to the distinct provisions in Charter § 114. Further, the Charterprovision cited by the dissent, section 104 (4), does not support an interpretation of "effectivedate" in section 112 (3) to mean the effective date of the final redistricting plan. Section 104 (4)provides, inter alia, that each legislator "shall reside in the county legislative district which suchperson represents at the time of such person's nomination for office," but does not speak to theeffective date of the delineation of the boundaries of such legislative districts.[*4]
Nor do we agree with the conclusion reached by ourdissenting colleagues that Local Law 3-2011 is inconsistent with, or purports to supersede, theElection Law in contravention of New York Constitution, article IX, § 2 (c) (ii) (1) andMunicipal Home Rule Law § 34 (3) (g). Election Law § 4-106 (2) requires a countyclerk to certify, at least eight months prior to the general election, each county office to be votedfor at such election. That section simply does not address district boundaries, much less does itprovide that the county clerk's certification of the offices "effectively incorporate[s] thedescription and boundaries of the legislative districts those offices represented at the time of thecertification," as the dissent suggests. Nor does any case law support such a conclusion.
We base our analysis on the record that was before the Supreme Court at the time the motionwas fully submitted, including facts concerning a clerk item proposed by certain legislators onJuly 11, 2011, purportedly to correct errors in the legal description of the metes and bounds,without changing the district lines, enacted in Local Law 3-2011. Our dissenting colleagues notethat the clerk item was enacted as Local Law No. 7 (2011) of the County of Nassau (Local Law7-2011) subsequent to the date of the order appealed from, a matter which is dehors the recordand not properly before us (seeTransaero, Inc. v Biri Assoc. Corp., 39 AD3d 738, 739 [2007]; Wilson v Wilson, 21 AD3d 548,549 [2005]). The principle that an appellate court must apply the law as it exists at the time anappeal is decided is inapplicable to the circumstances here, since the subsequently enacted LocalLaw 7-2011 is not dispositive of the issue before us, namely the interpretation of Charter§§ 112, 113, and 114 (cf. Matter of Demisay, Inc. v Petito, 31 NY2d 896,897 [1972]; Matter of Millerton Props. Assoc. v Town of N.E. Zoning Bd. ofAppeals, 227 AD2d 562, 562 [1996]). Local Law 3-2011 was passed on May 24, 2011, aftera public hearing, in advance of the petitioning process which began on June 7, 2011. Even takingjudicial notice of Local Law 7-2011 (see CPLR 4511; Hunter v New York, Ontario &W. R.R. Co., 116 NY 615, 621 [1889]), it does not represent an "actual manifestation" offurther redistricting after the petitioning process had concluded, as the dissent suggests, in lightof the appellants' contention, not reached or resolved here, that Local Law 7-2011 merelyclarified the legal description of metes and bounds in Local Law 3-2011 without changing thedistrict lines. We decline to speculate as to theoretical implementations of Charter § 112later in the petitioning and primary process or the political motivations which might drive them.We are guided in our analysis by principles of statutory construction. Courts, in construingstatutes, should avoid judicial legislation; we do not sit in review of the discretion of the countylegislature, nor do we determine the expediency, wisdom, or propriety of its action on matterswithin its powers (see Pajak v Pajak, 56 NY2d 394, 397 [1982]; McKinney's Cons Lawsof NY, Book 1, Statutes § 73).
Since the amendment of Annex A pursuant to the procedure set forth in Charter § 112became effective immediately, pursuant to the Legislature's statement that the "Local Law shalltake effect immediately upon filing with the Secretary of State pursuant to Section 27 of the NewYork State Municipal Home Rule Law" (Local Law 3-2011 § 3; see Aijaz v Hillside Place, LLC, 37AD3d 501 [2007]), as of May 25, 2011, Annex A, as amended, constituted the only effectivelegal description of the bounds of the County's 19 legislative districts. Nothing in Local Law3-2011 or Charter §§ 112, 113, or 114 requires that the amendment of Annex Amust be held in abeyance until the completion of the steps described in Charter §§113 and 114, before it may become effective. Therefore, the legislative districts described in therecently amended Annex A became effective upon the enactment of Local Law 3-2011 andremain in effect until such date as Annex A is further amended. Accordingly, we reverse theorder and judgment insofar as appealed from, and declare that the legislative boundariesdescribed in Annex A, as amended by Local Law 3-2011, must be implemented in connectionwith the general election to be held on November 8, 2011. Rivera, J.P., Angiolillo and Dickerson,JJ., concur.
Cohen, J., concurs in part and dissents in part, and votes to affirm the order and judgmentinsofar as appealed and cross-appealed from, with the following memorandum, in which Miller,J., concurs:
I respectfully dissent from the majority's reversal of the order and judgment insofar asappealed from. This case involves an appeal by Edward P. Mangano, in his capacity as NassauCounty Executive, Peter J. Schmitt, John J. Ciotti, Denise Ford, Francis X. Becker, Jr., HowardJ. [*5]Kopel, Vincent T. Muscarella, Richard J. Nicolello, NormaL. Gonsalves, Joseph V. Belesi, Dennis Dunne, Sr., and Rose Marie Walker, individually and intheir capacity as members of the Nassau County Legislature, William J. Muller, in his capacity asClerk of the Nassau County Legislature, the Nassau County Legislature, and the County ofNassau (hereinafter collectively the appellants), and a cross appeal by Diane Yatauro, Judith A.Jacobs, Kevan Abrahams, Robert Troiano, Jr., Judi Bosworth, Wayne H. Wink, Jr., and DavidDenenberg (hereinafter collectively the plaintiffs/petitioners) from an order and judgment (onepaper) of the Supreme Court, Nassau County (Jaeger, J.), entered July 21, 2011.
I conclude that the Supreme Court properly determined that the adoption, on May 24, 2011,of Local Law No. 3-2011 of County of Nassau (hereinafter Local Law 3-2011), which amendedthe 19 legislative districts, was the initial step in a legislatively prescribed three-step redistrictingprocess which did not apply to alter the districts for the 2011 election. The result urged by theappellants would contravene past legislative practice, result in multiple redistricting changes, andcontravene state law by permitting the Nassau County Legislature to amend the boundaries of thelegislative districts after the start of the election process. Such an outcome would work to deprivethe voters of Nassau County of the constitutional safeguards afforded by the second two steps ofthe three-step redistricting process. Consideration of these constitutional safeguards, the clearlanguage of the Nassau County Charter (hereinafter the Charter), the State Election Law, andcommon sense all compel me to reject the redistricting scheme advanced by the appellants andaccepted by the majority. Accordingly, I vote to affirm the order and judgment insofar asappealed and cross-appealed from.
Having its prior method of local governance ruled unconstitutional and in violation of the"one person, one vote" rule (Jackson v Nassau County Bd. of Supervisors, 818 F Supp509, 535 [1993]), on November 8, 1994, the voters of Nassau County adopted—byreferendum—the form, powers, structure, and districts of a new "Nassau CountyLegislature" (see Local Law No. 11-1994 of County of Nassau [hereinafter Local Law11-1994]).
As amended by Local Law 11-1994, the Charter provided for 19 legislative districts to be setforth in a map known as "Annex A" (Nassau County Charter [hereinafter Charter] § 112[1]), each represented by one legislator (see Charter § 104 [1]). Included in thevoter-approved changes to the Charter was a three-step process by which the legislative districtswould be redrawn every 10 years in response to new data gathered during the decennial federalcensus (see Charter §§ 112-114).
Following the decennial federal census released in 2001, the aforementioned three-stepprocess was implemented, resulting in the passage of Local Law No. 2-2003 of County of Nassau(hereinafter Local Law 2-2003), which altered the 19 legislative districts first effective in the2003 general election.
On March 3, 2011, pursuant to Election Law § 4-106 (2), the Nassau County Clerk(hereinafter the County Clerk) filed a certificate with the Nassau County Board of Electionssetting forth each county office to be voted for at the November 8, 2011, general election, withthe offices of the 19 members of the County Legislature listed by legislative district. On the datethat the County Clerk's certification was made to the Nassau County Board of Elections, thephysical parameters and legal description of the boundaries of the 19 legislative districts ofNassau County were defined and set forth in Annex A of the Charter, created by Local Law11-1994 and last amended by Local Law 2-2003.
On April 1, 2011, the 2010 decennial federal census results were released. On May 24, 2011,the County Legislature passed Local Law 3-2011, which, by its terms, amended, pursuant toCharter § 112 (2), the physical parameters and legal description of the boundaries of the 19legislative districts set forth in Annex A of the Charter, created by Local Law 11-1994 and lastamended by Local Law 2-2003. Local Law 3-2011, if immediately implemented, transfershundreds of thousands of individuals into newly formed legislative districts throughout NassauCounty.
In conjunction with the primary elections to be held on September 13, 2011, and [*6]within the parameters set forth in the County Clerk's certification:commencing June 7, 2011, individuals were permitted to begin collecting signatures ondesignating petitions (see Election Law § 6-134 [4]), for filing no later than July14, 2011 (see Election Law § 6-158 [1]); commencing June 28, 2011, individualswere permitted to begin collecting signatures on petitions for an opportunity to ballot in theprimary election (see Election Law § 6-164), for filing no later than July 21, 2011(see Election Law § 6-158 [4]); and commencing July 12, 2011, individuals werepermitted to begin collecting signatures on independent nominating petitions (seeElection Law § 6-138 [4]), for filing no later than August 23, 2011 (seeElection Law § 6-158 [9]).
Thereafter, on July 25, 2011, 11 days after the close of the period for filing designatingpetitions, the County Legislature passed Local Law No. 7-2011 of County of Nassau (hereinafterLocal Law 7-2011). Local Law 7-2011 stated that the map of the legislative districts as set forthin Annex A of the Charter, as amended by Local Law 3-2011, was "correct" and "accurate," butthat "technical corrections to the metes and bounds descriptions of that map" were necessary(Local Law 7-2011 § 1). The County Legislature "amended" Annex A by setting forth newmetes and bounds descriptions (Local Law 7-2011 § 2). Local Law 7-2011 was to "takeeffect immediately" and "[the] act and the said Legislative Districts [were] deemed to have beeneffectiveon the date of enactment of [Local Law 3-2011], May 24, 2011" (Local Law 7-2011 § 5).
The plaintiffs/petitioners commenced this hybrid action and proceeding for, inter alia, ajudgment declaring that the description and boundaries of the 19 legislative districts contained inAnnex A of the Charter, as amended by Local Law 3-2011, were not effective for the purposes ofthe 2011 general election to be held on November 8, 2011. The plaintiffs/petitioners contended,among other things, that the implementation of Local Law 3-2011 in the 2011 general electionwould violate the three-step process delineated by Charter §§ 112, 113, and 114, andotherwise violate the laws and constitution of New York State.
The appellants asserted that Local Law 3-2011 complies with Charter § 112, whichexplicitly requires the County Legislature to adopt a local law amending the description of the 19legislative districts within six months of public announcement of the decennial federal censusdata, and that nothing contained within sections 112, 113, or 114 prohibits or precludes theimmediate implementation of the newly described legislative districts.
The Supreme Court declared that the adoption of Local Law 3-2011 to amend Annex A wasin accord with Charter § 112 as the first step of the three-step process. However, the courtconcluded that the legislative districts described in Local Law 3-2011 would only constitute "newproposed legislative districts" and declared that "implementation of Local Law 3-2011. . . for use in the 2011 general election, is null and void for lack of compliance with§§ 113 and 114 of the Nassau County Charter." The court determined that newlegislative districts based on the 2010 census data could not be utilized until the 2013 generalelection and that the legislative districts as set forth in Local Law 2-2003 remained in effect forthe 2011 general election.
I agree that, when interpreting a statute, the starting point of analysis must be the plainmeaning of the statutory language, since it is the " 'clearest indicator of legislative intent' " (Matter of Pro Home Bldrs., Inc. vGreenfield, 67 AD3d 803, 805 [2009], quoting Majewski v Broadalbin-Perth Cent.School Dist., 91 NY2d 577, 583 [1998]). Moreover, "[i]n construing a statute, 'each part of astatute is to be given meaning and be interpreted so as to avoid absurd results' " (Matter of Westchester County Dept. ofSocial Servs. v Robert W.R., 25 AD3d 62, 68 [2005], quoting Matter of Anderson vBoard of Educ. of City of Yonkers, 46 AD2d 360, 364 [1974], affd 38 NY2d 897[1976]; see McKinney's Cons Laws of NY, Book 1, Statutes §§ 92, 145). "Ageneral rule of statutory interpretation is to provide a construction which harmonizes the variousprovisions of a statute with each other and with the general intent of the statute" (Matter ofWestchester County Dept. of Social Servs. v Robert W.R., 25 AD3d at 68-69; seeMcKinney's Cons Laws of NY, Book 1, Statutes §§ 96, 97, 98 [a]).
Accordingly, I agree with the Supreme Court that Charter §§ 112, 113, and 114establish a three-step redistricting process that takes place over the course of almost two years.These sections of the Charter, when read together and in light of the election process delineatedby the State Election Law, lead us to conclude that the adoption of Local Law 3-2011 did notrender the new [*7]districts applicable to the 2011 generalelection and that the legislative districts as set forth in Local Law 2-2003 remain in effect for thatpurpose.
While the first step of the redistricting process requires the County Legislature to "adopt alocal law amending Annex A hereto to describe the nineteen county legislative districts whichshall be based upon the new census data" (Charter § 112 [2]) within "six months afterpublic announcement of . . . each decennial federal census" (id.), to permitsuch a change to become immediately effective for the purpose of the 2011 election leads to anabsurd result. Accepting the appellants' position would mean that a majority of the CountyLegislature could, and in this case still may, redraw the legislative districts as late as October 1,2011—a date after the primary election has occurred (see Election Law§ 8-100 [1] [a]).
My consideration of the practical impact of the appellants' construction is not an exercise intheoretical speculation. On July 25, 2011, the County Legislature again amended Annex A andchanged the legislative districts well after the period for filing designating petitions had come toa close. I find it appropriate to consider the state of the local law as it exists at the time thisappeal is decided (see CPLR 4511; Prince, Richardson on Evidence § 2-305[Farrell 11th ed]; see generally Matter of Demisay, Inc. v Petito, 31 NY2d 896, 897[1972]; Matter of Millerton Props. Assoc. v Town of N.E. Zoning Bd. of Appeals, 227AD2d 562, 562 [1996]). Moreover, given the importance of this appeal in this and futureelections, I do not hesitate to acknowledge the reality of the circumstances which confront thepeople of Nassau County insofar as these circumstances are undisputed and exist in the publicrecord (see Hunter v New York, Ontario & W. R.R. Co., 116 NY 615, 621 [1889]; Matter of Pi., 86 AD3d 542[2011]). A refusal to take judicial notice of the actual manifestation of my "theoretical" concernswould lead to a result that justice cannot countenance and that I will not endorse.
This most recent example of the district redrawing exemplifies the absurd results that theappellants' construction would entail. The appellants' construction would not only foster thepotential, but would provide an incentive, for political gamesmanship that would compelcandidates to campaign within shifting political units while subjecting the electorate touncertainty and confusion. The Election Law does not authorize such a result.
"[T]he State Constitution grants significant autonomy to local governments to act withrespect to local matters" (Patrolmen's Benevolent Assn. of City of N.Y. v City of NewYork, 97 NY2d 378, 385-386 [2001] [internal quotation marks omitted]). However "ArticleIX, § 2 of the State Constitution grants the [State] Legislature authority to enact a 'generallaw' relating to the property, affairs or government of local governments" (id. at 385,quoting NY Const, art IX, § 2 [b] [2]). The Election Law is a general law, since it "appliesalike to all counties" (NY Const, art IX, § 3 [d] [1]; see Matter of Monahan vMurphy, 71 AD2d 92, 94 [1979], affd 51 NY2d 807 [1980]).
The New York Constitution further provides that "every local government shall have powerto adopt and amend local laws not inconsistent with the provisions of this constitution or anygeneral law relating to . . . [t]he powers, duties, qualifications, number, mode ofselection and removal, [and] terms of office . . . of its officers and employees" (NYConst, art IX, § 2 [c] [ii] [1]).
Accordingly, Nassau County was not delegated the power to enact local laws inconsistentwith the Election Law (see Davis Constr. Corp. v County of Suffolk, 95 AD2d 819, 820[1983]). This conclusion is consistent with Municipal Home Rule Law § 34, which statesthat "a county charter or charter law shall not supersede . . . [the] election law"(Municipal Home Rule Law § 34 [3] [g]; see Matter of Monahan v Murphy, 71AD2d at 94; cf. Election Law § 1-102).
Election Law § 4-106 (2) requires that, at least eight months before each generalelection, a county clerk transmit to the appropriate board of elections a certificate stating, amongother things, each county office to be voted for at such election in that county. That certificationconstitutes the formal description of the County offices to be filled at a general election(accord Matter of Broda v Monahan, 309 AD2d 959 [2003]).
Here, the County Clerk certified the offices of the County Legislature for each of the [*8]19 legislative districts which were to be the subject of the 2011general election, and the certification effectively incorporated the description and boundaries ofthe legislative districts those offices represented at the time of the certification. When the timeperiod prescribed in Election Law § 4-106 (2) elapsed, the process by which those officeswould be filled was commenced (see Matter of Engel v Board of Elections of State ofN.Y., 144 AD2d 175, 176 [1988]). After that time, those legislative districts could not bealtered by local law since to do so would be to authorize certification in contravention of theElection Law (see generally Matter of Monahan v Murphy, 71 AD2d at 94).
The appellants assert that the certification merely signaled that 19 legislative offices were tobe filled in the 2011 general election and that these legislative offices serve merely as genericplaceholders somehow divorced from the geographical boundaries they represent. If thisargument were to be accepted, the people of Nassau County would have no knowledge of theirown legislative district and the election process would effectively be pushed back from the dateof certification to the moment when further redistricting was foreclosed. Put simply, byamending Annex A after the election process has begun, the County Legislature has injecteduncertainty into a fundamental aspect of the election, to wit, the people and region eachlegislative office is to represent. This uncertainty will continue to loom over the election processuntil October 1, 2011, inasmuch as the appellants' construction places no other limitation on thelegislature's power to redraw the lines of the upcoming contest.
Since Charter § 112 (2) does not make reference to the time periods contained in theElection Law, attempts to immediately implement new legislative districts pursuant to thatsection will consistently run afoul of the Election Law and therefore be rendered unenforceable.Such an outcome supports the conclusion that amendments adopted pursuant to Charter §112 (2) are not to be utilized for elections until the other steps in the redistricting process haveoccurred (see McKinney's Cons Laws of NY, Book 1, Statutes § 144; see alsoJohanns v Ficke, 224 NY 513, 519 [1918]).
Unlike Charter § 112 (2), Charter §§ 113 and 114 are written to operatesmoothly with the same time periods provided in the Election Law to protect the mandatedconstitutional safeguards, which must be afforded to the voters of Nassau County. The membersof a temporary districting advisory commission (hereinafter Temporary Advisory Committee) areto be appointed "no earlier than one year and eight months before, and no later than one year andsix months before, the general election of the county legislators to be held in the year twothousand and three and every ten years thereafter" (Charter § 113 [1] [a]). The TemporaryAdvisory Committee must transmit its recommendations and any and all plans for dividing thecounty into districts to the County Legislature "[n]o later than ten months before the generalelection" (Charter § 113 [4]).
Moreover, the County Legislature is required to prepare and adopt by local law, a final planfor the redistricting of the County Legislature "no later than eight months before such generalelection of the County Legislature" (Charter § 114). As the Supreme Court observed, thistime period corresponds exactly to the period set forth in Election Law § 4-106 (2), andwould permit the County Clerk to file the certification of the offices to be filled in compliancewith that section.
The appellants' contention that these new districts should be utilized in the upcomingelection ignores the procedure of the aforementioned three-step redrawing process (seeCharter §§ 112-114), ignores the import of the County Clerk's statutorily mandatedcertification (see Election Law § 4-106 [2]), and ignores the time-sensitive flurryof petition activity already conducted. Indeed, the appellants would instead have these "new"legislative districts, which transfer approximately 500,000 individuals throughout NassauCounty, as the subject of the September 13, 2011, primary and the November 8, 2011, generalelection.
The appellants maintain that Charter § 112 (3) conclusively demonstrates that anychanges made pursuant to Charter § 112 (2) are to be given immediate effect in anysubsequent elections. However, although that subdivision refers to "a readjustment or alterationof the county legislative districts as provided in [Charter § 112 (2)]," the subdivision doesnot apply until the occurrence of "the effective date" of such a change (Charter § 112 [3]). Iconstrue "effective date" to refer to the adoption of the final redistricting plan pursuant to Charter§ 114 (accord Charter § 104 [4]). Thus, I disagree with the appellants'arguments that this subsection cannot be otherwise [*9]reconciled.
Furthermore, to place such import on a small measure clearly intended to protect and benefitincumbent legislators misses the point of the entire redistricting scheme. The immediateimplementation of the "new" legislative districts would deprive the people of Nassau County ofthe benefit of the constitutional safeguards afforded by the bipartisan Temporary AdvisoryCommittee, along with the public hearings, notices, hired experts, and demographers set forth inCharter §§ 113 and 114. Thus, for at least a two-year period, the appellants wouldhave us sacrifice these important procedural safeguards to a measure intended to benefit only thelegislators themselves. This two-year period would represent the first and only time that thepeople of Nassau County have been deprived of these safeguards.
The construction I advocate here is consistent with Charter § 113 (1) (a), whichrequires the legislature to establish a Temporary Advisory Committee in "each legislative term inwhich the legislature is required to reapportion the county legislative districts as a result of thefederal decennial census." Since section 113 (1) goes on to set forth specific dates keyed to the2003 election and every 10 years thereafter, the overall scheme only requires reapportionment inthose years. It is difficult to reconcile this prescribed 10-year cycle with the appellants' assertionthat each cycle should contain multiple redistricting implemented at successive elections.
Finally, my construction of Charter § 112 (2) does not render that subdivisionsuperfluous. The adoption of amendments to the legislative districts pursuant to that subdivisionconstitutes the County Legislature's endorsement of a particular plan and will serve as a startingpoint for public dialogue and the consideration to be afforded by the Temporary AdvisoryCommittee. Thus, Charter § 112 (2) serves as an important first step in the three-stepprocess devised to ensure a fair and equitable means of reapportionment.
In sum, I conclude that the Supreme Court properly determined that the adoption, on May 24,2011, of Local Law 3-2011, which amended the 19 legislative districts, was the initial step in alegislatively prescribed three-step redistricting process, which did not apply to alter the districtsfor the 2011 general election. Accordingly, I would affirm the order and judgment insofar asappealed and cross-appealed from.
Motion by 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., andRose Marie Walker, individually and in their capacity as members of the Nassau CountyLegislature, William J. Muller, in his capacity as Clerk of the Nassau County Legislature, theNassau County Legislature, and the County of Nassau to stay enforcement of an order andjudgment (one paper) declaring that the implementation of Local Law No. 3-2011 of County ofNassau in connection with the general election to be held on November 8, 2011, is null and void,pending hearing and determination of an appeal and cross appeal from the order and judgment ofthe Supreme Court, Nassau County, entered July 21, 2011.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the argument of the appeal and cross appeal, it is[*10]
Ordered that the motion is denied as academic in light ofour determination on the appeal and cross appeal. Rivera, J.P., Angiolillo, Dickerson, Cohen andMiller, JJ., concur.