KORMAN v. GIAMBRA, (W.D.N.Y. 2001)

JUDGE JOHN T. ELFIN.

Petitioner Alan Korman commenced this action in the New York State Supreme Court for Erie County May 22, 2001 by filing an order to show cause and verified petition. Therein petitioner seeks the following relief — viz., (1) a declaration that the current apportionment scheme for the Erie County Legislature, based on the 1990 census, flaunts the United States Constitution in that it violates of the principle of one person, one vote under the Equal Protection Clause of the Fourteenth Amendment, (2) an injunction barring the Erie County Board of Elections from accepting petitions for the office of Erie County Legislator or conducting an election for the Erie County Legislature until a new apportionment scheme in conformity with the 2000 census is adopted and (3) an order forcing Erie County to officially adopt a new redistricting plan in conformity with the 2000 census before today — June 5, 2001, the date potential candidates for election to the Erie County Legislature may begin circulating nominating petitions — or, in the alternative, for the court to create its own redistricting plan. Petition ¶¶ 7, 9-11. Justice Eugene M. Fahey of the State Court, on behalf of assignee Justice Kevin M. Dillon, signed the order to show cause, thereby requiring the defendants to appear in court before Justice Dillon at 11:00 a.m. May 25, 2001 to show cause why an order should not be entered

(1) "[d]eclaring insufficient, defective, null and void the current apportionment of the Erie County Legislature, State of New York [done in 1991 based on the 1990 census] for the failure to meet the Constitutional mandate of one-man, one-vote and ordering a new apportionment of Legislative Districts in Erie County, State of New York by enactment of the County Legislature or by a Court adopted plan;" and (2) "[e]njoining, restraining, and prohibiting the ERIE COUNTY BOARD OF ELECTIONS from conducting any Election for the Public Office of Member of the Erie County Legislature, State of New York until further order***."

The petition and order to show cause were served on respondents — including Laurie A. Manzella, the Clerk of the Erie County Legislature on behalf of respondent Erie County Legislature. Manzella forwarded a copy of the petition to Second Assistant County Attorney Andrew B. Isenberg, Esq. and to all seventeen Erie County Legislators May 23, 2001. On May 24, 2001 Isenberg received a telephone call from Justice Dillon's chambers directing him to appear in chambers at 11:00 a.m. that day in relation to the Korman case. Isenberg May 30, 2001 Aff. ¶ 19. Isenberg states that, out of an abundance of caution and, as a procedural/tactical decision, so as to avoid any assertion by Korman that the defendants' appearance at the scheduled session with Justice Dillon would result in a waiver of their right to remove the matter to Federal Court, he filed a notice of such removal on behalf of all defendants at 11:01 a.m. that day. Isenberg May 30, 2001 Aff. ¶¶ 21-22.

On May 24, 2001 the Erie County Legislature was scheduled to vote on the proposition that Communication 12D-7 along with other communications be accepted for receipt and filing. Greenan Aff. ¶ 4. John W. Greenan, the Minority Leader of the Erie County Legislature, states that Charles M. Swanick as the Chairman of the Erie County Legislature introduced an amendment to Communication 12D-7 when such was called for a voice vote and that such was then unanimously passed. The amendment to Communication 12D-7 is a resolution purportedly authorizing the Erie County Legislature to retain outside counsel to defend itself in this case.

Communication 12D-7 is a "printed form document, provided by the Erie County Legislature and signed by a representative of Laurence F. Adamczyk, Commissioner of the Board of Elections, which acknowledges his receipt of Local Law 3-200 1 [the new apportionment scheme based on the 2000 census passed by the Erie County Legislature May 10, 2001] on May 10, 2001." Greenan Aff. ¶ 4, Ex. B.

On May 25, 2001 Swanick, purportedly acting on behalf of the Erie County Legislature pursuant to the aforesaid amendment to Communication

12D-7 retained Matthew J. Jasen, Esq. and filed a motion to remand this case on the basis that defendant Erie County Legislature was not and had not been represented by the County Attorney and had not consented to removal. The undersigned signed an order to show cause why the above relief should not be granted, returnable May 31, 2001. Presently before this Court is Swanick's motion to remand. Such will be denied.

Under 28 U.S.C. § 1441 (a) "any civil action brought in a State court of which the district courts of the United States have original jurisdiction may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." This case was removed pursuant to 28 U.S.C. § 1441 (b) on the assertion that this Court has original jurisdiction because plaintiff's complaint raises a federal question. The district courts of the United States have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. To determine if there is federalquestion jurisdiction over a case, this Court applies the well-pleaded complaint rule, which states that a cause of action arises under federal law if a right or immunity created by federal law is an essential element of plaintiff's cause of action. Gully v. First Nat. Bank, 299 U.S. 109, 112-113 (1936).

"The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. *** A genuine and present controversy not merely a possible or conjectural one, must exist with reference thereto *** and the controversy must be disclosed upon the face of the complaint, unaided by the answer or the petition for removal." Ibid.

However "lack of any reference to federal law in the complaint is not controlling" if, from the substance of its allegations, it is clear that the complaint sets forth a claim arising under federal law. North Am. Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229, 233-234 (2d Cir. 1978).

Petitioner seeks an order declaring invalid the current apportionment plan for the Erie County Legislative Districts as being in violation of "the Constitutional mandate of one-man, one-vote" — i.e., the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution — and enjoining Erie County from accepting candidate petitions or conducting an election there under for the positions of Erie County Legislators. Petitioner states that the current apportionment plan for the Erie County Legislative Districts is based on the 1990 census, that the district in which he resides is currently underrepresented due to a change in population between 1990 and 2000 and that Erie County is scheduled to begin accepting candidate petitions for the office of County Legislator today based on the current apportionment scheme. Petition ¶¶ 1, 6-9. Accordingly, this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and this case was subject to removal.

Underrepresentation necessarily equates to a proportional diminishment of the voting power of the residents of the particular district. Whereas 10,000 citizens, merely as an example, had one vote in matters before the legislative body now, due to changes which are now reflected in the 2000 census, 15,000 citizens enjoy that single legislative vote. Such would not be violatory of the United States Constitution were it not for the circumstance that another 10,000-citizen district whose population was reduced in and by the 2000 census now enjoys the same power via its single legislative vote.

Petitioner's attorney, Richard S. Juda, Esq., filed an affidavit in support of Swanick's motion to remand on the basis that the "underlying challenge in the state court proceeding by Petitioner's lawsuit is to force a plan of reapportionment, and therefore, at this time, there is no Federal Question involved" — Juda Aff. ¶ 5 —; however he then continues to state that "it cannot be seriously argued that the existing 1991 census population plan of reapportionment does not violate the Equal Protection Clause [of the Fourteenth Amendment to the United States Constitution]." Id. ¶ 23. Seemingly petitioner is not attacking that reapportionate action which is pending before the Erie County Executive and is subject to his veto not later than June 11, 2001. What is under fire, with ample justification, is the basing of legislative voting power on the 1990 census or, rather, not upon upon the 2000 census.

Defendants — respondents here — or some of them desiring to remove a case to federal court are required to file a "notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal together with a copy of all process, pleadings and orders served upon such *** defendants in such action." 28 U.S.C. § 1446 (a). The order to show cause why this case should not be remanded was brought on the basis that not all of the defendants who had been served — e.g., the Erie County Legislature — had consented to removal. The County Attorney takes the position that the case was validly removed because he could make such decision on the behalf of the Erie County Legislature without obtaining its express consent or, in the alternative, that the Erie County Legislature is a nominal party whose consent was not required.

The County Attorney, as the attorney for the respondents, including at that time the Erie County Legislature, properly removed this case and the motion to remand will therefore be denied.

Accordingly it is hereby ORDERED that the motion made on behalf of the Erie County Legislature to remand is denied and that the County Attorney shall proceed with the defense of this case on behalf of all respondents by filing an answer on or before June 15, 2001.

This Court envisions no problems, procedural or otherwise, if attorney Jasen is to act in this proceeding on behalf of the Legislature or all or some of the Legislators. Mr. Jasen may act here independently of the Erie County Attorney.