Case 1:11-cv DLI-RR-GEL Document 396 Filed 06/18/12 Page 1 of 3 PageID #: 7644 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

Transcription

1 Case 1:11-cv DLI-RR-GEL Document 396 Filed 06/18/12 Page 1 of 3 PageID #: 7644 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK MARK A. FAVORS, et al. ) ) ) Plaintiffs, ) ) v. ) Case: 1:11-cv DLI-RLM ) ORAL ARGUMENT REQUESTED ANDREW M. CUOMO, et al. ) Date of Service: June 18, 2012 ) ) Defendants. ) ) NOTICE OF DEFENDANT SENATOR DEAN G. SKELOS S MOTION TO DISMISS CROSS-CLAIM PLEASE TAKE NOTICE that, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and Local Rule 7.1(a)(1), Defendant New York State Senator Dean G. Skelos respectfully moves to dismiss the Cross-Claim filed by Defendants Senators John L. Sampson and Martin Malave Dilan (DE 370). As explained in the accompanying Memorandum, Senator Sampson and Senator Dilan lack standing to pursue the Cross-Claim, and the Cross-Claim is barred by the res judicata effect of the final judgment in Cohen v. Cuomo. Therefore, the Court should dismiss the Cross-Claim. 1

2 Case 1:11-cv DLI-RR-GEL Document 396 Filed 06/18/12 Page 2 of 3 PageID #: 7645 Dated: June 18, 2012 Respectfully submitted, /s/michael A. Carvin Michael A. Carvin (MC 9266) JONES DAY 51 Louisiana Avenue, NW Washington, DC / Todd R. Geremia (TG 4454) JONES DAY 222 East 41st Street New York, NY / David Lewis (DL 0037) LEWIS & FIORE 225 Broadway, Suite 3300 New York, NY / Attorneys For Defendants Dean G. Skelos, Michael F. Nozzolio, and Welquis R. Lopez 2

3 Case 1:11-cv DLI-RR-GEL Document 396 Filed 06/18/12 Page 3 of 3 PageID #: 7646 CERTIFICATE OF SERVICE I hereby certify that, on this 18th day of June, 2012, a true and correct copy of the foregoing was served on the following counsel of record through the Court s CM/ECF system: Richard Mancino Daniel Max Burstein Jeffrey Alan Williams WILLKIE FARR & GALLAGHER 787 Seventh Avenue New York, NY Attorneys for Plaintiffs Leonard M. Kohen 67 E. 11th Street #703 New York, NY Attorney for Defendants John L. Sampson and Martin Malave Dilan Harold D. Gordon Couch White, LLP 540 Broadway Albany, NY Attorney for Defendant Brian M. Kolb James D. Herschlein KAYE SCHOLER LLP 425 Park Avenue New York, NY Attorney for Intervenors Lee, Chung, Hong, and Lang Joshua Pepper Assistant Attorney General 120 Broadway, 24th Floor New York, NY Attorney for Defendants Andrew M. Cuomo, Eric T. Schneiderman, and Robert J. Duffy Jonathan Sinnreich SINNREICH KOSAKOFF & MESSINA LLP 267 Carleton Avenue, Suite 301 Central Islip, NY Attorney for Defendant Robert Oaks Joan P. Gibbs Center for Law and Social Justice 1150 Carroll Street Brooklyn, NY Attorney for Intervenors Drayton, Ellis, Forrest, Johnson, Woolley, and Wright Jackson Chin LatinoJustice PRLDEF 99 Hudson Street, 14th Floor New York, NY Attorney for Intervenors Ramos, Chavarria, Heymann, Martinez, Roldan, and Tirado Jeffrey Dean Vanacore Perkins Coie LLP 30 Rockefeller Center, 25th Floor New York, NY Attorney for Rose Intervenors /s/michael A. Carvin 3

4 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 1 of 28 PageID #: 7647 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK MARK A. FAVORS, et al. ) ) ) Plaintiffs, ) ) v. ) Case: 1:11-cv DLI-RLM ) ORAL ARGUMENT REQUESTED ANDREW M. CUOMO, et al. ) Date of Service: June 18, 2012 ) ) Defendants. ) ) MEMORANDUM IN SUPPORT OF DEFENDANT SENATOR DEAN G. SKELOS S MOTION TO DISMISS CROSS-CLAIM

5 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 2 of 28 PageID #: 7648 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii INTRODUCTION... 1 BACKGROUND... 2 ARGUMENT... 5 I. SENATOR SAMPSON AND SENATOR DILAN LACK STANDING TO ASSERT THE CROSS-CLAIM... 7 A. Senator Sampson And Senator Dilan Have Not Alleged Any Personal Harm From The Senate Plan... 7 B. Senator Sampson s And Senator Dilan s Appearances Solely In Their Official Capacities Underscore Their Lack Of Standing... 8 II. THE CROSS-CLAIM IS PRECLUDED BY THE COHEN JUDGMENT A. Cohen Involved The Same Transaction As The Cross-Claim B. Senator Sampson, As A Privy To The Cohen Judgment, Is Barred From Asserting The Cross-Claim C. The Senate Minority Had A Full And Fair Opportunity To Assert The Equal-Population Claim In Cohen CONCLUSION CERTIFICATE OF SERVICE... 23

6 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 3 of 28 PageID #: 7649 TABLE OF AUTHORITIES CASES Page(s) Abate v. Mundt, 25 N.Y.2d 309 (1969)...21 Allen v. McCurry, 449 U.S. 90 (1980)...14, 21 Allen v. Pataki, No , 2002 WL (N.Y. Sup. Ct. Jan. 30, 2002)...21 Allen v. Wright, 468 U.S. 737 (1984)...5, 7, 8 Baker v. Carr, 369 U.S. 186 (1962)...6, 7, 8, 10 Day v. Moscow, 955 F.2d 807 (2d Cir. 1992)...6 Dear v. Board of Elections, No. 03-cv-3739, 2003 WL (E.D.N.Y. Aug. 25, 2003)...19, 20, 21 Esler v. Walters, 56 N.Y.2d 306 (1982)...21 Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974)...7, 8 Ferris v. Cuevas, 118 F.3d 122 (2d Cir. 1997)... passim Fulani v. Mackay, No. 06 Civ. 3747, 2007 WL (S.D.N.Y. Mar. 29, 2007)...15 Golkin v. Abrams, 803 F.2d 55 (2d Cir. 1986)...14, 15 Graham v. Thornburgh, 207 F. Supp. 2d 1280 (D. Kan. 2002)...7, 8, 10 Growe v. Emison, 507 U.S. 25 (1993)...22 Gustafson v. Johns, 213 F. App x 872 (11th Cir. 2007)...15, 16, 17 ii

7 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 4 of 28 PageID #: 7650 Iannucci v. Bd. of Supervisors of Washington Cnty., 20 N.Y.2d 244 (1967)...21 Jacobson v. Fireman s Fund Ins. Co., 111 F.3d 261 (2d Cir. 1997)...14, 18 Kentucky v. Graham, 473 U.S. 159 (1985)...9 Larios v. Perdue, 306 F. Supp. 2d 1190 (N.D. Ga. 2003)...8 Makarova v. United States, 201 F.3d 110 (2d Cir. 2000)...5 Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75 (1984)...12 People ex rel. Spitzer v. Applied Card Sys., Inc., 11 N.Y.3d 105 (2008)...13, 15, 16, 18 Quilter v. Voinovich, 981 F. Supp (N.D. Ohio 1997), summ. aff d, 523 U.S (1998)...11, 12 Raines v. Byrd, 521 U.S. 811 (1997)...7, 10, 11, 12 Reilly v. Reid, 45 N.Y.2d 24 (1978)...13, 18 Reynolds v. Sims, 377 U.S. 533 (1964)...6, 7, 10 Rodriguez v. Pataki, 308 F. Supp. 2d 346 (S.D.N.Y. 2004), summ. aff d, 543 U.S. 997 (2004)...2 Ruiz v. Comm r of Dep t of Transp. of City of New York, 858 F.2d 898 (2d Cir. 1988)...18 Schultz v. Williams, 44 F.3d 48 (2d Cir. 1994)...13 Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976)...7 Skolnick v. Bd. of Comm rs of Cook Cnty., 435 F.2d 361 (7th Cir. 1970)...7 iii

8 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 5 of 28 PageID #: 7651 Smith v. Russell Sage College, 54 N.Y.2d 185 (1981)...13, 14, 16 Tarpley v. Salerno, 803 F.2d 57 (2d Cir. 1986)...14 Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct (2011)...9, 10 Watts v. Swiss Bank Corp., 27 N.Y.2d 270 (1970)...18, 20 Wright v. Dougherty Cnty., 358 F.3d 1352 (11th Cir. 2004)...6, 7, 8, 10 STATUTES AND CONSTITUTIONAL AUTHORITIES CPLR 5601(b)(2)...21 N.Y. Const. Article III, N.Y. Const. Article VI, 7...2, 21 N.Y. Unconsol. Laws , 21 OTHER AUTHORITIES Fed. R. Civ. P , 5, 6 iv

9 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 6 of 28 PageID #: 7652 Defendant New York State Senator Dean G. Skelos respectfully submits this memorandum in support of his Motion to Dismiss the Cross-Claim filed by Defendants Senators John L. Sampson and Martin Malave Dilan ( Senate Minority ) (DE 370). INTRODUCTION Senator Sampson and Senator Dilan have not even attempted to plead that the Senate Plan s presumptively constitutional minor deviation has harmed them at all, much less as voters residing in underrepresented districts. Instead, Senator Sampson and Senator Dilan have appeared in this case only in their official capacities in the place of the State of New York yet they now seek to assert a claim against the State. Unsurprisingly, the Senate Minority cites no authority permitting a state to sue itself through dueling political officials, and ignores the controlling authority that state officers suffer no cognizable harm from an allegedly unconstitutional redistricting plan. The Court therefore should dismiss the Cross-Claim under Federal Rule of Civil Procedure 12(b)(1) because Senator Sampson and Senator Dilan lack standing to assert it. In the alternative, the Court should dismiss the Cross-Claim under Rule 12(b)(6) because it is barred by the final judgment in Cohen v. Cuomo. (DE 310, 351). Senator Dilan represented by his same counsel here, Mr. Hecker could have brought the equal-population claim in the Cohen proceeding and, indeed, made virtually identical factual allegations against the Senate Plan in Cohen as he makes here. In fact, Mr. Hecker and the Senate Minority have repeatedly represented that [t]he Senate size issue resolved in Cohen is inextricably intertwined with the equal-population theory they now seek to press in this case. (DE 390 at 2); see also 4/20/12 Hr g tr. at 48. Yet Senator Dilan made a tactical decision to assert only the state-law claim in Cohen and insisted on its expedited consideration. That choice resulted in a 1

10 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 7 of 28 PageID #: 7653 quick final judgment and now a procedural bar on the Senate Minority s attempt to assert a successive challenge to the Senate Plan in this Court. That bar also extends to Senator Sampson because he is in privity with Senator Dilan, and because Mr. Hecker, as counsel in both cases, orchestrated the Senate Minority s overarching litigation strategy. 1 BACKGROUND This case marks the second time during this redistricting cycle that Senator Dilan has sought judicial invalidation of the Senate Plan on theories that his counsel has forthrightly and repeatedly represented to this Court are inextricably intertwined with each other. (DE 390 at 2). On March 15, Mr. Hecker, on behalf of Senator Dilan and other voters, filed a challenge to the Senate Plan under Article III, Section 4 of the New York Constitution and the citizen-suit provision of New York Unconsolidated Laws See Cohen v. Cuomo Pet. (DE 288-1). Senator Dilan and his co-petitioners brought that challenge against several of the Defendants in this case including Governor Andrew Cuomo, Lieutenant Governor Robert Duffy, Senator Skelos, and Assembly Speaker Sheldon Silver in New York Supreme Court, a court of general original jurisdiction in law and equity. N.Y. Const. art. VI, 7(a); see also Cohen Pet. (DE 288-1). Senator Dilan and the other Cohen petitioners alleged that the Senate Plan s purported state-law violation effected a severe partisan gerrymander. Cohen Pet They further asserted that the Senate Plan is severely malapportioned because [a]ll of the upstate districts in the plan are significantly underpopulated, and all of the New York City districts in the plan are 1 As the Senate Majority will show in its forthcoming motion for summary judgment (see 6/15/12 Scheduling Order), the Cross-Claim also should be dismissed on the merits because, on the pleadings and undisputed record, the Senate Minority cannot carry its heavy burden to show that the Senate Plan s presumptively constitutional minor deviation resulted solely from an unconstitutional or irrational state purpose. Rodriguez v. Pataki, 308 F. Supp. 2d 346, 366 (S.D.N.Y. 2004) (per curiam) (emphasis added), summ. aff d, 543 U.S. 997 (2004). 2

11 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 8 of 28 PageID #: 7654 significantly overpopulated. Id Thus, Senator Dilan and the other Cohen petitioners represented by Mr. Hecker claimed that the Senate Plan does not reflect a good-faith effort to interpret the Constitution. Id The Cohen petitioners sought to bolster these allegations with an affidavit from Mr. Todd Breitbart. Mr. Breitbart asserted, and purported to advance proof in support, that the Senate Plan contains extreme population deviations that have no justification and are unnecessary, engages in unnecessary and improper regional malapportionment, and was enacted for nakedly politically partisan reasons. Cohen Breitbart Aff. 9, 10, 11, 16 (DE 289-2). The Cohen petitioners asserted that their state-law challenge must be decided extraordinarily quickly... [i]n light of the political calendar. Cohen Pet. 16. They never suggested that the state courts should delay consideration of their challenge until after the Justice Department precleared the Senate Plan under Section 5 of the Voting Rights Act, notwithstanding that the Senate Minority argued to the U.S. Department of Justice that New York failed properly to obtain preclearance of its determination to expand the size of the Senate to 63 seats. See id.; (DE at 2 12). The New York Supreme Court expedited consideration of the petition and entered final judgment in favor of the Cohen defendants on April 13. (DE 310). The Department of Justice precleared the Senate Plan two weeks later on April 27. (DE 332). The New York Court of Appeals likewise granted the Cohen petitioners application to expedite their appeal and then, after full briefing and oral argument, affirmed the Supreme Court s judgment in a unanimous per curiam decision entered on May 3. (DE 351). Meanwhile, several Intervenors had filed Amended Complaints in this case challenging the Senate Plan under the Fourteenth Amendment s equal-population requirement. (DE 254, 3

12 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 9 of 28 PageID #: , 257). Those operative pleadings named Senator Sampson and Senator Dilan, like all other Defendants in this case, solely in their official capacities in place of the State. (See, e.g., id. 24, 28; DE , 17 18; DE , 21). On May 16 prior to commencement of New York s political calendar this Court denied the Drayton Intervenors and the Ramos Intervenors motions for a preliminary injunction because their equal-population claims rest on novel, contested legal ground and the intervenors have not shown a likelihood of success on the merits. 5/16/12 Op. at 22 (DE 367). Senator Sampson and Senator Dilan never sought leave to realign themselves as plaintiffs in this case or to join in the various Intervenors equal-population challenges. Rather, they now assert in this Court a second challenge to the Senate Plan, in addition to the challenge that was decided against Senator Dilan and his co-petitioners in Cohen. In particular, on May 23, the Senate Minority, represented by Mr. Hecker, filed a Cross-Claim alleging an equal-population challenge against their fellow State officers who were also named as respondents in Cohen Governor Cuomo, Lieutenant Governor Duffy, Senator Skelos, and Speaker Silver. (DE 370). The Senate Minority s Cross-Claim consists of only ten paragraphs and makes no allegation that either Senator Sampson or Senator Dilan has suffered any personal harm from the Senate Plan. See Cross-Claim In fact, the Cross-Claim largely rehashes the petitioners allegations in Cohen. See id. The Cross-Claim alleges, similar to the petition in Cohen, that the Senate Majority exalted its partisan agenda over the requirements of the one-person, one-vote rule, that the Senate Plan creates a skewed regional effect by underpopulat[ing]... all of the districts in the... upstate region[] and overpopulat[ing]... [a]ll of the districts in New York City, and that the Senate Majority did not make an honest and good faith effort to draw the Senate districts. Id

13 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 10 of 28 PageID #: 7656 Just as the Cohen petitioners did, the Senate Minority relies on a declaration from Mr. Breitbart as factual support for these allegations. See Favors Breitbart Decl. (DE 327). Mr. Breitbart s declaration reiterates his assertions from Cohen that the Senate Plan s presumptively constitutional minor deviations and its regional bias... cannot be justified by reliance upon any of the traditional redistricting principles recognized in the New York Constitution or accepted by other courts and that the Senate Plan cannot possibly have been the product of an honest and good-faith effort to achieve population equality, and instead could only have been the result of a process designed to maximize partisan advantage. Id. 37, 88 (emphasis removed). Notwithstanding that these same allegations were asserted in Cohen, the Cross-Claim makes no mention of the Cohen litigation that Senator Dilan previously lost. See Cross-Claim Mr. Hecker and the Senate Minority, however, have repeatedly represented that [t]he Senate size issue resolved in Cohen is inextricably intertwined with their Cross-Claim in this case. (DE 390 at 2); see also 4/20/12 Hr g tr. at 48. Senator Sampson and Senator Dilan also have conceded that they are aware of no authority suggesting that a public official named as a defendant in a constitutional challenge to government action can assert a claim against the state in whose place he has been sued if he believes... that the claims asserted against him... have merit. (DE 326 at 2 n.1). ARGUMENT A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). As a court of limited jurisdiction, this Court has constitutional power to adjudicate only cases or controversies where the claimant has allege[d] personal injury fairly traceable to the defendant s allegedly unlawful conduct and 5

14 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 11 of 28 PageID #: 7657 likely to be redressed by the requested relief. Allen v. Wright, 468 U.S. 737, 751 (1984) (emphasis added). Only a voter residing in an underrepresented (i.e., overpopulated) district has standing to bring an equal-population challenge to a redistricting plan. See, e.g., Wright v. Dougherty Cnty., 358 F.3d 1352, 1355 (11th Cir. 2004) (per curiam); see also Baker v. Carr, 369 U.S. 186, (1962); Reynolds v. Sims, 377 U.S. 533, 554 (1964). This Court lacks jurisdiction over and should dismiss the Cross-Claim under this rule. Senator Sampson and Senator Dilan have made no allegations that they have suffered any harm from the purported equal-population violation, let alone personal harm as voters residing in underrepresented districts. See Cross-Claim In fact, Senator Sampson and Senator Dilan have appeared in this case solely in their official capacities and in place of the State. And they also lack standing to bring claims on behalf of the State against the State. Alternatively, the Court should dismiss the Cross-Claim under Rule 12(b)(6). Generally res judicata is an affirmative defense to be pleaded in the defendant s answer. However, when all relevant facts are shown by the court s own records, of which the court takes notice, the defense may be upheld on a Rule 12(b)(6) motion without requiring an answer. Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992). Here, as the record and the Senate Minority s own pleadings and admissions amply demonstrate, the Cross-Claim is barred by the final judgment in Cohen. Mr. Hecker and Senator Dilan could have brought their equal-population challenge along with the state-law claim in Cohen (DE 399 at 2) but they elected instead to press for expedited consideration of the state-law claim only. That choice resulted in a final judgment on the merits that, under black-letter preclusion law, now bars the Senate Minority from asserting successive challenges to the Senate Plan. 6

15 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 12 of 28 PageID #: 7658 I. SENATOR SAMPSON AND SENATOR DILAN LACK STANDING TO ASSERT THE CROSS-CLAIM A. Senator Sampson And Senator Dilan Have Not Alleged Any Personal Harm From The Senate Plan No principle is more fundamental to the judiciary s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976). One crucial element of the case-or-controversy limitation is the requirement that claimants, based on their complaint, must establish that they have standing to sue. Raines v. Byrd, 521 U.S. 811, 818 (1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Because the standing inquiry focuses on whether the [claimant] is the proper party to bring th[e] suit, id., to meet Article III s standing requirement the claimant must allege personal injury fairly traceable to the defendant s allegedly unlawful conduct and likely to be redressed by the requested relief, Allen, 468 U.S. at 751 (emphasis added). The Supreme Court thus has consistently stressed that a... complaint must establish that [the claimant] has a personal stake in the alleged dispute, and that the alleged injury suffered is particularized as to him. Raines, 521 U.S. at 819. Because the Fourteenth Amendment principle of one-person, one-vote obviously protects the right of all qualified citizens to vote, Reynolds, 377 U.S. at 554 (emphases added), a claimant asserting an equal-population challenge must demonstrate that the redistricting plan visits personal harm on him as a voter by underweighting his vote, see Baker, 369 U.S. at ; see also Graham v. Thornburgh, 207 F. Supp. 2d 1280, 1283 (D. Kan. 2002) ( To bring a voting rights claim, a plaintiff must allege a specific and personal injury as a voter. (emphasis added)). This injury necessarily results only to those persons domiciled in the underrepresented voting districts. Wright, 358 F.3d at 1355 (quoting Fairley v. Patterson, 493 F.2d 598, 603 (5th Cir. 1974)); see also Skolnick v. Bd. of Comm rs of Cook Cnty., 435 F.2d 361 (7th 7

16 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 13 of 28 PageID #: 7659 Cir. 1970); Larios v. Perdue, 306 F. Supp. 2d 1190, (N.D. Ga. 2003). Thus, a resident of an overrepresented district suffers no injury from the alleged malapportionment and lacks standing to challenge to the plan. See Wright, 358 F.3d at 1355; Fairley, 493 F.2d at 604. The Senate Minority has not even attempted to plead these bedrock standing requirements. Neither Senator Sampson nor Senator Dilan makes any allegation that they have any personal stake in this litigation, that the Senate Plan visits personal harm on them by underweighting their votes, or that they reside in underrepresented Senate districts. See Cross- Claim They are merely seeking to revisit an issue that they lost on a vote in the State Legislature. 2 To underscore the point, Senator Sampson and Senator Dilan have not appeared in this case in their personal capacities as voters, but instead only in their official capacities as a legislator and a LATFOR member. (See DE , 28; DE , 17 18; DE , 21). Senator Sampson and Senator Dilan thus have failed to allege any personal injury fairly traceable to the defendant s allegedly unlawful conduct and likely to be redressed by the requested relief, and therefore lack standing. Allen, 468 U.S. at 751 (emphasis added); see also Baker, 369 U.S. at ; Wright, 358 F.3d at 1355; Fairley, 493 F.2d at ; Graham, 207 F. Supp. 2d at For this reason alone, the Cross-Claim should be dismissed. B. Senator Sampson s And Senator Dilan s Appearances Solely In Their Official Capacities Underscore Their Lack Of Standing Senator Sampson s and Senator Dilan s appearance in this suit solely in their official capacities does not remedy their failure to plead a cognizable injury and, for at least two reasons, actually underscores that they lack standing to pursue the Cross-Claim. 2 In fact, Senator Sampson and Senator Dilan, along with other opponents of the Senate Plan, opted to quit the chamber and be marked absent when debate was finally closed and the vote on the Senate Plan was taken. 8

17 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 14 of 28 PageID #: 7660 First, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (emphasis removed). Thus, because they assert the Cross-Claim solely in their official capacities, Senator Sampson and Senator Dilan in all respects stand in the place of the State. That is, they now seek license to bring a claim by the State, in their official capacities, against the State. Id. The Senate Minority identifies no authority that would permit such a bizarre (and potentially collusive) lawsuit. In fact, Senator Sampson and Senator Dilan have expressly admitted that they are aware of no authority suggesting that a public official named as a defendant in a challenge to government action can assert a claim against the state on whose behalf he has been sued if he believes... that the claims asserted against him... have merit. (DE 326 at 2 n.1). Nor does the Senate Minority even mention much less attempt to invoke the narrow rule permitting an independent state agency to bring an official-capacity suit for prospective relief against a state officer. See Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct (2011). And with good reason: the Senate Minority is not a state agency, and could not satisfy the exacting test for such suits in any event. The Supreme Court has clarified that, in order to bring such a suit, a state agency needs two things: first, a federal right that it possesses against its parent State; and second, authority to sue other state officials to enforce that right, free from any internal veto wielded by the state government. Id. at These conditions will rarely coincide and at least the latter of them cannot exist without the consent of the State that created the agency and defined its powers. Id. The Senate Minority cannot satisfy either of these conditions. Nor does it even try. In the first place, Senator Sampson and Senator Dilan in their official capacities as representatives 9

18 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 15 of 28 PageID #: 7661 of the State have no federal right against the State. Id. To the contrary, the Constitution s rights-creating Clauses protect persons rather than officers. Id. at 1644 (Kennedy, J., joined by Thomas, J., concurring). And the only federal right identified in the Cross-Claim is the constitutional right to properly apportioned districts, but that right inures to voters, not state officers. See Baker, 369 U.S. at ; Reynolds, 377 U.S. at 554; Wright, 358 F.3d at 1355; Graham, 207 F. Supp. 2d at Moreover, Senator Sampson and Senator Dilan have not even attempted to identify any state law granting them authority to sue other state officials to enforce that right. Stewart, 131 S. Ct. at That is because New York has not authorized the Senate Minority or any of its other representatives or organs to sue the State over redistricting disputes. Indeed, it would be bizarre for the State to consent to State officers bringing challenges to the State s duly enacted laws. Id.; see also id. at 1643 ( If States do not wish to see their internal conflicts aired in federal court, they need not empower their officers or agencies to sue one another in a federal forum. ) (Kennedy, J., joined by Thomas, J., concurring). Thus, there simply is no basis for the Senate Minority s novel attempt to try to force the State to sue itself in this Court. Second, even if the Senate Minority could clear the insurmountable hurdle to an officialcapacity suit against other State officers, Senator Sampson and Senator Dilan still would have no cognizable injury sufficient to confer standing. The Supreme Court s decision in Raines v. Byrd is instructive. There, six Members of Congress brought a constitutional challenge to the Line Item Veto Act. See 521 U.S. at 814. The plaintiffs argued that they had legislative standing to assert that challenge in their official capacities because the Act allegedly causes a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress and both Houses of Congress equally. Id. at 821. Noting that [w]e have 10

19 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 16 of 28 PageID #: 7662 always insisted on strict compliance with th[e] jurisdictional standing requirement, the Supreme Court rejected that argument. Id. at 819. The Supreme Court pointed out that the injury claimed by the Members of Congress here is not claimed in any private capacity but solely because they are Members of Congress who faced a loss of political power. Id. at 821. Thus, because the plaintiffs alleged no injury to themselves as individuals and an institutional injury that was wholly abstract and widely dispersed, they lacked standing to pursue their claim. Id. at 829. In a decision summarily affirmed by the Supreme Court, a three-judge court in Ohio applied Raines to reject a claim of legislative standing to assert an Equal Protection challenge to a redistricting plan. See Quilter v. Voinovich, 981 F. Supp. 1032, 1038 (N.D. Ohio 1997), summ. aff d, 523 U.S (1998). The plaintiffs there were Democratic members of the Ohio Apportionment Board, the administrative body charged with drawing districts for the Ohio General Assembly. See id. at They brought suit against the Republican members of the Board, alleging that the redistricting plan for the Ohio House was racially discriminatory. See id. The plaintiffs argued that they had legislator standing to challenge the statewide plan because it allegedly rendered them unable to fulfill their duty to create legal voting districts. Id. at Reasoning that, under Raines, legislator standing based on institutional injury... is limited to instances of vote nullification with regard to specific legislative action, the three-judge court rejected that argument. Id. at The three-judge court pointed out that the plaintiffs did not allege an improper procedure or incursion by another branch of government, but instead an alleged injury [that] resulted from the majority s decision to choose a course of action that the outnumbered members thought to be unconstitutional. Id. [T]he precedent of granting the plaintiffs standing in this context would invite any legislator who was 11

20 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 17 of 28 PageID #: 7663 outvoted on a particular measure to bring a constitutional challenge to that measure merely because he or she had not prevailed. Id. The three-judge court therefore held that the plaintiffs lacked standing to challenge the plan in their official capacities as Board members. See id. at The Supreme Court summarily affirmed. See 523 U.S (1998). These controlling authorities close the door on any argument that Senator Sampson and Senator Dilan have standing to pursue the Cross-Claim in their official capacities. Indeed, Senator Sampson and Senator Dilan have not even suggested that their official capacities confer standing. See Cross-Claim Moreover, as discussed, they have alleged no injury to themselves as individuals, Raines, 521 U.S. at 829 and any alleged injury from being outvoted on the Senate Plan they thought to be unconstitutional (but chose not to vote on) is categorically insufficient, Quilter, 981 F. Supp. at 1038; see also Raines, 521 U.S. at 829. Senator Sampson and Senator Dilan, in sum, have failed to identify any cognizable harm to them from the Senate Plan, and their Cross-Claim should be dismissed. II. THE CROSS-CLAIM IS PRECLUDED BY THE COHEN JUDGMENT In the alternative, the Court should dismiss the Cross-Claim because it is barred by the res judicata effect of the Cohen judgment rejecting the Senate-size claim that the Senate Minority has expressly represented is inextricably intertwined with their Cross-Claim. (DE 390 at 2); see also 4/20/12 Hr g tr. at 48. [A] federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). New York law follows 3 The three-judge court held that the plaintiffs could assert racial discrimination claims with respect to the districts in which they resided because they had properly pled such claims in their personal capacity as voters. See Quilter, 981 F. Supp. at

21 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 18 of 28 PageID #: 7664 the transaction[al] approach to res judicata. Smith v. Russell Sage College, 54 N.Y.2d 185, 192 (1981). That approach bars successive litigation based upon the same transaction or series of connected transactions if (i) there is a judgment on the merits rendered by a court of competent jurisdiction and (ii) the party against whom the doctrine was invoked was a party to the previous action, or in privity with a party who was. People ex rel. Spitzer v. Applied Card Sys., Inc., 11 N.Y.3d 105, 122 (2008). Thus, under New York law, parties are precluded from raising in a subsequent proceeding any claim they could have raised in the prior one, where all of the claims arise from the same underlying transaction, Schultz v. Williams, 44 F.3d 48, 54 (2d Cir. 1994) (applying New York law), even if the two suits involve several legal theories depend[ing] on different shadings of the facts, or would emphasize different elements of the facts or would call for different measures of liability or different kinds of relief, Smith, 54 N.Y.2d at 192. In other words, where the same foundation facts serve as a predicate for each proceeding, differences in legal theory and consequent remedy do not create a separate cause of action. Reilly v. Reid, 45 N.Y.2d 24, 30 (1978). The second court s inquiry therefore focuses on whether the successive claims, even if separately stated, arise out of the same gravamen of the wrong as the claims asserted in the first suit. Smith, 54 N.Y.2d at 192. There can be no dispute that the Cohen judgment is a judgment on the merits rendered by a court of competent jurisdiction, or that Senator Dilan was a party to Cohen. Applied Card, 11 N.Y.3d at 122. The Cross-Claim also involves the same transaction as Cohen: the enactment of the Senate Plan. Moreover, for purposes of the Cross-Claim, Senator Sampson is in privity with Senator Dilan, as they are both in the Democratic caucus and are represented in this case by the same counsel who represented the Cohen petitioners. And the Senate Minority 13

22 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 19 of 28 PageID #: 7665 had more than a full and fair opportunity to litigate the equal-population theory in Cohen. Allen v. McCurry, 449 U.S. 90, 104 (1980). The Cross-Claim is therefore barred by the final judgment in Cohen, and, for this reason as well, the Court should dismiss it. A. Cohen Involved The Same Transaction As The Cross-Claim The question whether a factual grouping constitutes a transaction or series of transactions for res judicata purposes depends on how the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether... their treatment as a unit conforms to the parties expectations or business understanding or usage. Smith, 54 N.Y.2d at Thus, even separately stated claims arise out of the same transaction and are barred by res judicata where they challenge the same contract between the parties, id., the same statute, see, e.g., Golkin v. Abrams, 803 F.2d 55 (2d Cir. 1986) (per curiam), or the same government action, see, e.g., Ferris v. Cuevas, 118 F.3d 122 (2d Cir. 1997). The Second Circuit s decision in Ferris v. Cuevas is illustrative. That case involved serial challenges to the New York City Clerk s refusal to certify petitions to place an initiative on the ballot. See id. at 124. In a state-court suit, three plaintiffs raised claims alleging that the Clerk s action violated New York law, and the New York courts rejected those claims. See id. In a later federal-court suit, a group of related plaintiffs alleged that the City Clerk s refusal to place the initiative on the ballot also violated their federal First Amendment rights. See id. at 125. Applying New York law, the Second Circuit recognized that res judicata bars future litigation between the same parties, or those in privity with them, on the same cause of action. Id. at 126. The Second Circuit therefore held that the federal constitutional claim was barred by the state-court judgment because it arises from the same set of facts and seeks the same remedy as the state-court action despite the different legal theory advanced. Id.; see also Jacobson v. Fireman s Fund Ins. Co., 111 F.3d 261, 265 (2d Cir. 1997); Tarpley v. Salerno, 14

23 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 20 of 28 PageID #: F.2d 57, 59 (2d Cir. 1986); Golkin, 803 F.2d at 57; Fulani v. Mackay, No. 06 Civ. 3747, 2007 WL at *5 6 (S.D.N.Y. Mar. 29, 2007). The Eleventh Circuit has applied the transactional test to bar subsequent challenges to a redistricting plan on the basis of a prior judgment. See Gustafson v. Johns, 213 F. App x 872 (11th Cir. 2007) (per curiam). Gustafson involved two federal-court suits raising various claims against Alabama s 2001 redistricting plans. See id. at 874. The Eleventh Circuit applied res judicata to bar the second suit because [t]he causes of action in both cases arose out of the same operative nucleus of fact the 2001 redistricting plans. Id. at 877. Furthermore, the claims in both cases involve the same primary right and duty in that the causes of action sought to invalidate the redistricting plans because the population deviations within the plans created a situation where votes were given unequal weight. Id. The Eleventh Circuit therefore held that the application of res judicata is appropriate because [i]n both cases, all the claims have the same substance in that they challenge the redistricting plans based on population deviations, even though the plaintiffs purported to plead a new theory of liability in the second suit. Id. Here, the Cross-Claim plainly involves the same transaction as was at issue in the Cohen claim. Applied Card, 11 N.Y.3d at 122. Indeed, the Senate Minority has repeatedly represented that [t]he Senate size issue resolved in Cohen is inextricably intertwined with their Cross-Claim. (DE 390 at 2); see also 4/20/12 Hr g tr. at 48. And with good reason: despite the different legal theory advanced, the Cross-Claim arises out of the same set of facts the Senate Plan and seeks the same remedy invalidation of that Plan that Senator Dilan and his co-petitioners sought in Cohen. Ferris, 118 F.3d at 126; see also Gustafson, 213 F. App x at 877. Indeed, while it is sufficient under the same transaction test that the Cohen claim and the Cross-Claim both arise from the Senate Plan, those claims are much more closely 15

24 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 21 of 28 PageID #: 7667 related than that, as both arise out of the Senate Plan s alleged malapportionment, political and regional bias, and lack of good faith. The Cross-Claim therefore is barred by the Cohen judgment and should be dismissed. See Applied Card, 11 N.Y.3d at 122; Gustafson, 213 F. App x at 877. Application of res judicata does not turn on whether a later lawsuit reasserts allegations made in a prior proceeding. The test is only whether the lawsuits rest on the same transaction or factual grouping. Here, however, an examination of the underlying allegations in Cohen and the Cross-Claim only further confirms that the Senate Minority Defendants simply seek to repackage the same skewed factual presentation into separately stated causes of action. See Smith, 54 N.Y.2d at 192. Senator Dilan and the other Cohen petitioners alleged that the Senate Plan s purported constitutional violation effected a severe partisan gerrymander that does not reflect a good-faith effort to interpret the Constitution. Cohen Pet. 8, 145. They further asserted that the Senate Plan is severely malapportioned because [a]ll of the upstate districts in the plan are significantly underpopulated, and all of the New York City districts in the plan are significantly overpopulated. Id And they submitted Mr. Breitbart s affidavit alleging that the Senate Plan contains extreme population deviations that have no justification and are unnecessary, engages in unnecessary and improper regional malapportionment, and was enacted for nakedly politically partisan reasons. Cohen Breitbart Aff. 9, 10, 11, 16 (DE 289-2). The Senate Minority has regurgitated these same allegations in the Cross-Claim. Like the Cohen petition, the Cross-Claim alleges that the Senate Majority exalted its partisan agenda over the requirements of the one-person, one-vote rule, that the Senate Plan creates a skewed regional effect by underpopulat[ing]... all of the districts in the... upstate region[] and 16

25 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 22 of 28 PageID #: 7668 overpopulat[ing]... [a]ll of the districts in New York City, and that the Senate Majority did not make an honest and good faith effort to draw the Senate districts. Cross-Claim 4 9. And just like the Cohen petitioners, the Senate Minority supports its Cross-Claim with a declaration from Mr. Breitbart that rehashes the same baseless assertions he submitted in Cohen: that the Senate Plan s presumptively constitutional minor deviations and its regional bias... cannot be justified by reliance upon any of the traditional redistricting principles recognized in the New York Constitution or accepted by other courts, and that the Senate Plan cannot possibly have been the product of an honest and good-faith effort to achieve population equality, and instead could only have been the result of a process designed to maximize partisan advantage. Favors Breitbart Decl. 37, 88 (emphasis removed). The parallel pleadings and submissions emphatically underscore that the Cohen claim and the Cross-Claim arise out of the same transaction. See Gustafson, 213 F. App x at 877. And the claims in both cases involve the same primary right and duty in that the causes of action sought to invalidate the [Senate Plan] because the population deviations within the plans created a situation where votes were given unequal weight, allegedly reflected regional bias, and purportedly resulted from improper political motivations. Id. Res judicata thus bars the Cross- Claim because [i]n both cases, all the claims have the same substance, even though the Senate Minority seeks to repackage its rejected view of the facts under a new theory of liability. Id. B. Senator Sampson, As A Privy To The Cohen Judgment, Is Barred From Asserting The Cross-Claim The Cohen judgment thus bars Senator Dilan, a party in Cohen, from asserting successive challenges to the Senate Plan in the guise of the Cross-Claim. That bar also extends to Senator Sampson because he is in privity with Senator Dilan, and represented by the same counsel who executed the litigation strategy in both cases. 17

26 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 23 of 28 PageID #: 7669 Privity denominates a rule... to the effect that under the circumstances, and for the purposes of the case at hand, a person may be bound by a prior judgment to which he was not a party of record. Watts v. Swiss Bank Corp., 27 N.Y.2d 270, 277 (1970); see also Jacobson, 111 F.3d at 265. The privity inquiry is, of course, informed by reference to the policies that res judicata is designed to protect, Applied Card, 11 N.Y.3d at 123, such as provid[ing] finality in the resolution of disputes to assure that parties may not be vexed by further litigation, Reilly, 45 N.Y.2d at 28 ( Considerations of judicial economy as well as fairness to the parties mandate, at some point, an end to litigation. ). Privity thus includes those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and possibly co-parties to a prior action. Watts, 27 N.Y.2d at 277 (emphasis added). The New York Court of Appeals also has deemed the fact that the claimants in both actions were represented by the same lawyer of singular significance in determining privity. Id. at 278. This is particularly true where the attorney formulated an overarching strategy for the two actions. Ruiz v. Comm r of Dep t of Transp. of City of New York, 858 F.2d 898, 903 (2d Cir. 1988). The Second Circuit applied these principles in Ferris to rule that two distinct groups of plaintiffs were in privity. The state-court plaintiffs in Ferris signed rejected petitions; one of them, Juntikka, also was a lawyer who represented the plaintiffs in that action. See 118 F.3d at 124. The federal-court plaintiffs were a separate group of petition signers also represented by Juntikka. See id. at 125. The two groups of plaintiffs shared an identity of interests because both sought validation of the petitions and placement of the initiative on the ballot. See id. at 128. And because the parties also shared counsel who formulated the overarching strategy for the 18

27 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 24 of 28 PageID #: 7670 two suits, the Second Circuit concluded that the two sets of plaintiffs were in privity. Id. (privity doctrine aims to prevent one controlling person or entity from bringing multiple suits in the names of different plaintiffs, and controlling the litigation from the shadows ). For similar reasons, the Eastern District of New York in Dear v. Board of Elections ruled that two sets of plaintiffs were in privity. The state-court plaintiffs in that case were a group of political candidates who challenged the term-limit law for New York City Council members. See No. 03-cv-3739, 2003 WL , at *7 (E.D.N.Y. Aug. 25, 2003). The plaintiffs in a later federal-court suit challenging the same law included voters who were not parties to the state-court case. See id. at *8. This Court nonetheless concluded that the voters were in privity with the candidates and, thus, that their claims were barred by res judicata. See id. at *8 13. The Court pointed out that the voters interests were adequately represented in the prior state-court action because they articulate claims virtually identical to those advanced before the New York Supreme Court. Id. at *9. Moreover, the Court reasoned, the assistance provided by the voters attorney to the candidates in the state-court litigation was [a] significant connection between the parties. Id. at *12. Even though the voters attorney did not formally represent the candidates, he assisted in researching and drafting the candidates submissions to the state court. Id. Thus, at the same time counsel was representing the plaintiff voters in federal court, he was simultaneously collaborating with [the candidates] in [their] presentation to the state court. Id. These actions suggest a carefully orchestrated overarching strategy and a naked attempt to secure two bites at the same apple that is inconsistent with the important role of res judicata in conserving judicial resources by discouraging redundant litigation. Id. at * Senator Sampson plainly is in privity with Senator Dilan under these precedents. First, rather than merely being part of a large group of citizens who signed certain 19

28 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 25 of 28 PageID #: 7671 petitions or wished to vote for certain candidates, Senator Sampson and Senator Dilan have a much more precise link: they are the leaders of the Senate Minority s redistricting efforts. Since they are part of a small group of elected officials with precisely the same interests, they are in much closer privity than the plaintiffs at issue in Ferris and Dear, and so res judicata under those cases standards follows a fortiori. In fact, Senator Sampson and Senator Dilan have identical interests. See Cross-Claim 1 10; see also supra Part II.A.1. And Senator Sampson seeks exactly the same relief invalidation of the Senate Plan due to alleged malapportionment, political and regional discrimination, and lack of good faith that Senator Dilan seeks here and also sought in Cohen. See, e.g., supra Part II.A.1. Thus, Senator Sampson s interests were represented by a party to the Cohen judgment. Watts, 27 N.Y.2d at 277; see also Ferris, 118 F.3d at 128; Dear, 2003 WL , at *7. Moreover, [a] significant connection between Senator Sampson and Senator Dilan arises from their common representation by Mr. Hecker. Dear, 2003 WL , at *12; see also Ferris, 118 F.3d at 128. Indeed, the fact that Mr. Hecker represents both Senator Sampson and Senator Dilan forges an even more significant connection than was present in Dear, where the lawyer merely assisted the state-court plaintiffs but did not formally represent them. See 2003 WL , at *7. By contrast, Mr. Hecker has represented Senator Dilan in both cases and Senator Sampson in this case; researched, drafted, and signed all pleadings and briefs on behalf of the Cohen petitioners and Senator Sampson and Senator Dilan; and presented oral argument on the Senate Minority s behalf at every turn. Mr. Hecker also secured expedited resolution of the state constitutional claim in Cohen and has attempted to reserve later litigation of the federal claim in this case. Such a carefully orchestrated overarching strategy smacks of 20

29 Case 1:11-cv DLI-RR-GEL Document Filed 06/18/12 Page 26 of 28 PageID #: 7672 a naked attempt to secure two bites at the same apple in contravention of bedrock res judicata principles. Id. at *12 13; see also Ferris, 118 F.3d at 124. Res judicata thus bars Senator Sampson from asserting the Cross-Claim. C. The Senate Minority Had A Full And Fair Opportunity To Assert The Equal-Population Claim In Cohen Res judicata also is appropriate because the Senate Minority had a full and fair opportunity to litigate their equal-population theory in Cohen. Allen, 449 U.S. at 104. The New York Supreme Court is a court of general original jurisdiction in law and equity, N.Y. Const. art. VI, 7(a), and the New York Court of Appeals shall... consider[], as of right, appeals taken from a court of record of original jurisdiction which finally determines an action or proceeding where the only question involved on appeal is the validity of a statutory provision of the state or of the United States under the Constitution of the state or the United States, id. 3(b)(2); see also CPLR 5601(b)(2). The citizen-suit provision invoked by the Cohen petitioners, Unconsolidated Laws 4221, places no limitation on the types of claims that can be asserted in New York state courts but provides in general terms that [a]n apportionment by the legislature shall be subject to review by the supreme court at the suit of any citizen. N.Y. Unconsol. Law Both the Cohen petition and the Cross-Claim challenge an apportionment by the legislature. Id. The Senate Minority nowhere disputes that the New York courts have jurisdiction over federal equal-population claims and cannot do so since New York courts (and other state courts) have frequently exercised their concurrent jurisdiction over such claims. See, e.g., Allen v. Pataki, No , 2002 WL , at *1 (N.Y. Sup. Ct. Jan. 30, 2002) ( 4221 case); Esler v. Walters, 56 N.Y.2d 306, (1982); Abate v. Mundt, 25 N.Y.2d 309, (1969); Iannucci v. Bd. of Supervisors of Washington Cnty., 20 N.Y.2d 244,