Opinion
01-CV-0369E(Sr)
June 14, 2002
MEMORANDUM and ORDER
Familiarity with the facts and procedural history of this case is presumed. On August 8, 2001 this Court issued a Memorandum and Order declaring that,
"[b]ecause one person-one vote is a bedrock Constitutional right of each and every citizen, the present geographic boundaries of the seventeen election districts comprising Erie County, the territory served by the Erie County Legislature, are askew and must be remedied. "What the undersigned is now putting in place by this Interim Order is a mechanism that rectifies this illegal and malodorous condition while not muddling the situation for those who currently hold elective legislative positions and for those who will — after this September's primary elections — be the competing candidates in this November's general election for becoming or continuing as the seventeen legislators who will represent their respective districts through the calender years 2002 and 2003." Korman v. Giambra, No. 01-CV-0369E, 2001 WL 967552, at *1 (W.D.N.Y. Aug. 8, 2001).
This Court thereupon implemented a system of weighted voting whereby each of the seventeen County Legislator's votes was proportionately increased or decreased based upon the relative numerosity of the residents in his or her district. This Court further held that "[s]uch weighting *** shall obtain until a redistricting plan shall legally be put in place by the Erie County Legislature and the Erie County Executive — or by the Erie County Legislature's overriding the Erie County Executive's veto — or by the undersigned," although the undersigned added that it was his then "present intention to not put in place his own redistricting plan unless a redistricting plan by the Legislature is not in place by March 15, 2002." Ibid. On August 16, 2001 Dennis E. Ward, Esq., counsel for plaintiff-intervenors Donna Stempniak and Janice Dunne, wrote a letter to the undersigned stating that,
"[a]s a point of information, there has been some discussion throughout the community (both political and legal) as to the intent of the Court's Order in regard to the weighted voting. It appears that the Order for weighted voting would mean that representatives elected under the existing lines in November 2001 would serve for two (2) years and during the entire two year period would vote under the weighted vote plan.
"However the Court's reference to either a legislative plan being enacted before March 1, [sic] 2002 or in the alternative a court imposed plan after such date, has suggested to some that the Court is directing elections would take place under the new lines, in the Fall of 2002. That interpretation would suggest that the elections this November are simply for a one (1) year term.
"I believe a short explanation of the Court would put to rest any such discussions and would clarify for all parties and the communities as a whole, the intent of the Court's Order." Isenberg May 31, 2002 Aff. Ex. B.
The undersigned responded to Ward August 21, 2001 stating: "I firmly believe that no further or other clarification of my Order is required or justifiable." Id. at Ex. C. On February 28, 2001 the Erie County Legislature passed a redistricting plan, Local Law Intro. No. 2-2002 ("LL 2-2002"), and such was approved and signed by the Erie County Executive March 14, 2001; however, because such redistricting plan reduces the number of legislative districts from seventeen to fifteen, it is subject to and contingent upon its approval by the voters of Erie County in a referendum to be held during the November 2002 general elections. Id. at Exs. G, I and J.
Plaintiff filed a motion for summary judgment April 12, 2002 arguing that Erie County had failed to comply with this Court's August 8, 2002 Order because such Order required the County to have legally enacted and in place a redistricting plan by March 15, 2002 and that the County had failed to do so because LL 2-2002 is subject to and contingent upon approval by the voters. Plaintiff therefore requested this Court to (1) impose a seventeen-member redistricting plan upon the County, (2) terminate weighted voting and (3) order a special election for one-year terms as County Legislators to be held this November. Plaintiff-intervenors Stempniak and Dunne filed an affidavit in support of such motion, as did those Erie County Legislators represented by Matthew J. Jasen, Esq. The Erie County defendants filed papers in opposition to such motion, arguing that this Court's August 8, 2001 Order intended that those Erie County Legislators elected in the November 2001 election would serve full two-year terms, that weighted voting would remain in effect throughout calendar years 2002-2003 and that the County had complied with this Court's August 8, 2001 Order by enacting LL 2-2002 before March 15, 2002 even though it cannot become effective unless and until approved by the voters of Erie County. Those Erie County Legislators represented by Ronald P. Bennett, Esq. filed an affidavit in opposition to such motion. Oral argument on plaintiff's motion for summary judgment was held June 7, 2002 — at which time David Dale, Esq. was granted leave to intervene — and such has been before this Court for disposition.
Inasmuch as Korman's April 12, 2002 motion is in actuality more in the nature of a request for clarification of this Court's August 8, 2001 Order — which clarification this Court had found unnecessary in August of 2001 but which now appears to be warranted — it will be treated as such. Pursuant to this Court's August 8, 2001 Order, each of the seventeen Erie County Legislators elected in the November 2001 election will serve a full two-year term and, because the seventeen districts from which each was elected were unconstitutionally malapportioned, the Erie County Legislature will continue to operate under weighted voting through December 31, 2003. Because this Court's August 8, 2001 Order provided that the seventeen legislators elected in November 2001 would serve until December 31, 2003, ample time remains to abide the approval vel non of LL 2-2002 by the voters of Erie County. If the voters approve LL 2-2002 via the November 5, 2002 referendum, elections for the positions of Erie County Legislator will then be held in November of 2003 based upon the fifteen districts and, when and if such elected legislators take office in January 2004, weighted voting will terminate. If the voters disapprove LL 2-2002, weighted voting will continue and there will still remain ample time either for Erie County to enact a seventeen-member redistricting plan or for this Court to impose a redistricting plan upon the County.
While the undersigned admits that his intention had been to allow the Legislature (with the County Executive's approval) a time within which to enact its own 17-member plan and, if it did not, to impose his own plan, the proposed 15-member plan suffices — no attack having been made as to its representativeness.
Accordingly, it is hereby ORDERED that Korman's motion for summary judgment is denied and that the caption shall be changed to:
"ALAN KORMAN, Plaintiff, and DONNA STEMPNIAK, JANICE DUNNE, HISPANICS FOR FAIR AND EQUITABLE REAPPORTIONMENT and DAVID DALE, ESQ., Plaintiffs-Intervenors, v. ERIE COUNTY EXECUTIVE JOEL A. GIAMBRA, ERIE COUNTY BOARD OF ELECTIONS, Laurence F. Adamczyk, Commissioner, Ralph M. Mohr, Commissioner, ERIE COUNTY CLERK DAVID J. SWARTS and THE ERIE COUNTY LEGISLATURE, Defendants.