Case 1:11-cv DLI-RLM Document 42 Filed 12/28/11 Page 1 of 3 PageID #: 367

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1 Case 1:11-cv DLI-RLM Document 42 Filed 12/28/11 Page 1 of 3 PageID #: 367 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK x MARK A FAVORS, HOWARD LIEB, LILLIE H. GALAN, EDWARD A. MULRAINE, WARREN SCHREIBER, and WEYMAN A. CAREY, Plaintiffs, 11-cv-5632(DLI)(RLM) ANDREW M. CUOMO, as Governor of the State of New York, ERIC T. SCNEIDERMAN, as Attorney General of the State of New York, ROBERT DUFFY, as President of the Senate of New York, DEAN G. SKELOS, as Majority Leader and President Pro Tempore of the Senate of the State of New York, SHELDON SILVER, as Speaker of the Assembly of the State of New York, JOHN L. SAMPSON, as Minority Leader of the Senate of the State of New York, BRIAN M. KOLB, as Minority Leader of the Assembly of the State of New York, the NEW YORK STATE LEGISLATIVE TASK FORCE ON DEMOGRAPHIC RESEARCH AND REAPPORTIONMENT ( LATFOR ), JOHN J. McENENY, as Member of LATFOR,, ROBERT OAKES, as Member of LATFOR, ROMAN HEDGES, as Member of LATFOR, MICHAEL F. NOZZOLIO, as Member of LATFOR, MARTIN MALAVE DILAN, as Member of LATFOR, and WELQUIS R. LOPEZ, as Member of LATFOR, Defendants x NOTICE OF DEFENDANT ROBERT OAKS MOTION TO DISMISS PLAINTIFFS COMPLAINT PLEASE TAKE NOTICE that upon the accompanying Declaration of Timothy Hill, and for the reasons set forth therein, and upon the pleading and proceedings herein, Defendant

2 Case 1:11-cv DLI-RLM Document 42 Filed 12/28/11 Page 2 of 3 PageID #: 368 Robert Oaks respectfully moves to dismiss Plaintiffs Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). SINNREICH KOSAKOFF & MESSINA LLP /s/ Jonathan Sinnreich Timothy Hill Attorneys for Defendant Robert Oaks 267 Carleton Avenue, Suite 301 Central Islip, New York (631) To (via ECF): Richard Mancino, Esq. Daniel Max Burstein, Esq. Jeffrey Alan Williams, Esq. WILLKIE FARR & GALLAGHER LLP Counsel for Plaintiffs 787 Seventh Avenue New York, New York (212) Kevin Lang, Esq. COUCH WHITE LLP Counsel for Defendant Brian M. Kolb 540 Broadway Albany, New York (518) Joshua Benjamin Pepper, Esq. Stephen Kerwin, Esq. OFFICE OF THE ATTORNEY GENERAL Counsel for Defendants Andrew M. Cuomo, Eric T. Schneiderman, and Robert J. Duffy 120 Broadway 24 th Floor New York, New York (212)

3 Case 1:11-cv DLI-RLM Document 42 Filed 12/28/11 Page 3 of 3 PageID #: 369 Michael A. Carvin, Esq. JONES DAY Counsel for Defendants Dean G. Skelos, Michael F. Nozzolio, and Welquis R. Lopez 51 Louisiana Avenue, NW Washington, DC (202) Todd R. Geremia, Esq. JONES DAY Counsel for Defendants Dean G. Skelos, Michael F. Nozzolio, and Welquis R. Lopez 222 East 41 st Street New York, New York (212) David L. Lewis, Esq. LEWIS & FIORE Counsel for Defendants Dean G. Skelos, Michael F. Nozzolio, and Welquis R. Lopez 225 Broadway, Suite 3300 New York, New York (212) Leonard M. Kohen, Esq. Counsel for Defendants John L. Sampson and Martin Malave Dilan 67 East 11 th Street # 703 New York, New York (212) C. Daniel Chill, Esq. GRAUBARD MILLER Counsel for Defendants Sheldon Silver, John J. McEneny, and Roman Hedges The Chrysler Building 405 Lexington Avenue 19 th Floor New York, New York (212)

4 Case 1:11-cv DLI-RLM Document 42-1 Filed 12/28/11 Page 1 of 4 PageID #: 370 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK x MARK A FAVORS, HOWARD LIEB, LILLIE H. GALAN, EDWARD A. MULRAINE, WARREN SCHREIBER, and WEYMAN A. CAREY, Plaintiffs, ANDREW M. CUOMO, as Governor of the State of New York, ERIC T. SCNEIDERMAN, as Attorney General of the State of New York, ROBERT DUFFY, as President of the Senate of New York, DEAN G. SKELOS, as Majority Leader and President Pro Tempore of the Senate of the State of New York, SHELDON SILVER, as Speaker of the Assembly of the State of New York, JOHN L. SAMPSON, as Minority Leader of the Senate of the State of New York, BRIAN M. KOLB, as Minority Leader of the Assembly of the State of New York, the NEW YORK STATE LEGISLATIVE TASK FORCE ON DEMOGRAPHIC RESEARCH AND REAPPORTIONMENT ( LATFOR ), JOHN J. McENENY, as Member of LATFOR,, ROBERT OAKES, as Member of LATFOR, ROMAN HEDGES, as Member of LATFOR, MICHAEL F. NOZZOLIO, as Member of LATFOR, MARTIN MALAVE DILAN, as Member of LATFOR, and WELQUIS R. LOPEZ, as Member of LATFOR, 11-cv-5632(DLI)(RLM) DECLARATION IN SUPPORT OF MOTION TO DISMISS Defendants x Timothy Hill, an attorney duly admitted to practice law before the Courts of the State of New York and the United States District Court for the Eastern District of New York, hereby declares the following: 1. I am an associate of the law firm of Sinnreich Kosakoff & Messina LLP, attorneys for defendant ROBERT OAKS, named herein as a member of LATFOR ( Oaks ).

5 Case 1:11-cv DLI-RLM Document 42-1 Filed 12/28/11 Page 2 of 4 PageID #: I submit this Declaration in support of the motion for an Order, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (FRCP), dismissing the Complaint in its entirety as against Oaks, together with such other and further relief as the Court deems just and proper. 3. This office has had the opportunity to review the motion being prepared and filed on behalf of co-defendant Brian M. Kolb, Minority Leader of the Assembly of the State of New York ( Kolb ), likewise seeking dismissal under FRCP 12(b)(1) and (6), and has conferred with counsel for said co-defendant with respect to these motions. 4. In the interest of brevity and so as to not burden the Court with duplicative motion papers or redundant arguments, defendant Oaks hereby incorporates the arguments for dismissal set forth in the Memorandum of Law dated December 28, 2011, supporting the Kolb motion to dismiss, and adopts each and all such arguments in their entirety as his own. 5. Briefly restated, the grounds for dismissal are as follows. First, the action improperly asks the federal judiciary to intervene in political questions and procedures reserved to the States including specifically the reapportionment plan that LATFOR is charged with developing, a process the courts have recognized to be within the province of the States and their legislative branches. See Chapman v. Meier, 420 U.S. 1, 27 (1975); see also Miller v. Johnson, 515 U.S. 900, 915 (1995). Because LATFOR is actively engaged in the process of developing its reapportionment plan, plaintiffs speculative challenge is premature and unnecessary. 6. Second, based upon the principles set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the plaintiffs lack standing as a matter of law. No plaintiff herein has suffered an injury in fact or otherwise alleged facts to confer standing. Indeed, LATFOR has not yet 2

6 Case 1:11-cv DLI-RLM Document 42-1 Filed 12/28/11 Page 3 of 4 PageID #: 372 finalized its reapportionment plan. Instead, plaintiffs merely offer conjecture as to future events, which speculation is plainly insufficient to establish standing for the claims asserted herein. 7. Third, the claims presented herein are not ripe. As such, the plaintiffs have not presented an actual case or controversy and thereby deprive the Court of subject matter jurisdiction. The claims asserted by plaintiffs are not ripe because LATFOR has not yet finalized its reapportionment plan. Similarly, so much of the Complaint as is based upon the Prisoner Reallocation Law is not only unripe, but likely moot as well given recent developments concerning an agreement reached on that issue illustrating the fundamentally premature nature of the action. See Longway v. Jefferson County Bd. of Supervisors, 24 F.3d 397 (2d Cir.1994). The ripeness doctrine applies to all of the counts in the Complaint and compels dismissal of the action in its entirety. 8. Fourth, in addition to the foregoing defects, the plaintiffs Equal Protection claim fails as a matter of law because the Complaint does not plead the essential elements of such a claim i.e., that plaintiffs were treated differently from those similarly situated based upon constitutionally impermissible considerations. Plaintiffs state no claim under the one-person one-vote principle since a.) their allegations as to the prior existing districts are patently immaterial and b.) their allegations as to the presently ongoing and developing reapportionment plan are premature and speculative. 9. Finally, the due process claim likewise fails as a matter of law since it is undisputed and acknowledged that LATFOR s procedures offer the public notice and access and afford so much process as is due under the circumstances, because the claim is premature, and because plaintiffs have suffered no injury or constitutional deprivation. 3

7 Case 1:11-cv DLI-RLM Document 42-1 Filed 12/28/11 Page 4 of 4 PageID #: Based upon the foregoing, and for the reasons more fully set forth in the Memorandum of Law submitted in support of the motion by co-defendant Kolb, which arguments are incorporated herein by reference, it is respectfully submitted that the Complaint, and each and every Count thereof, should be dismissed in its entirety as against defendant Oaks pursuant to FRCP Rule 12(b)(1) and (6). Dated: December 28, 2011 Central Islip, New York Respectfully submitted, /s/ Timothy Hill Timothy Hill 4

8 Case 1:11-cv DLI-RLM Document 42-2 Filed 12/28/11 Page 1 of 4 PageID #: 374 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK x MARK A FAVORS, HOWARD LIEB, LILLIE H. GALAN, EDWARD A. MULRAINE, WARREN SCHREIBER, and WEYMAN A. CAREY, Plaintiffs, 11-cv-5632(DLI)(RLM) ANDREW M. CUOMO, as Governor of the State of New York, ERIC T. SCNEIDERMAN, as Attorney General of the State of New York, ROBERT DUFFY, as President of the Senate of New York, DEAN G. SKELOS, as Majority Leader and President Pro Tempore of the Senate of the State of New York, SHELDON SILVER, as Speaker of the Assembly of the State of New York, JOHN L. SAMPSON, as Minority Leader of the Senate of the State of New York, BRIAN M. KOLB, as Minority Leader of the Assembly of the State of New York, the NEW YORK STATE LEGISLATIVE TASK FORCE ON DEMOGRAPHIC RESEARCH AND REAPPORTIONMENT ( LATFOR ), JOHN J. McENENY, as Member of LATFOR,, ROBERT OAKES, as Member of LATFOR, ROMAN HEDGES, as Member of LATFOR, MICHAEL F. NOZZOLIO, as Member of LATFOR, MARTIN MALAVE DILAN, as Member of LATFOR, and WELQUIS R. LOPEZ, as Member of LATFOR, Defendants MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT ROBERT OAKS MOTION TO DISMISS SINNREICH KOSAKOFF & MESSINA LLP Attorneys for Defendant Robert Oaks 267 Carleton Avenue, Suite 301 Central Islip, New York (631)

9 Case 1:11-cv DLI-RLM Document 42-2 Filed 12/28/11 Page 2 of 4 PageID #: 375 Defendant Robert Oaks, by his attorneys, Sinnreich Kosakoff & Messina LLP, hereby respectfully submits this Memorandum of Law in support of the instant motion for an Order, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (FRCP), dismissing the Complaint in its entirety as against Oaks, together with such other and further relief as the Court deems just and proper. This office has had the opportunity to review the motion being prepared and filed on behalf of co-defendant Brian M. Kolb, Minority Leader of the Assembly of the State of New York ( Kolb ), likewise seeking dismissal under FRCP 12(b)(1) and (6), and has conferred with counsel for said co-defendant with respect to these motions. In the interest of brevity and so as to not burden the Court with duplicative motion papers or redundant arguments, defendant Oaks hereby incorporates the factual background and arguments for dismissal set forth in the Memorandum of Law dated December 28, 2011, supporting the Kolb motion to dismiss, and adopts each and all such arguments in their entirety as his own. Briefly restated, the grounds for dismissal are as follows. POINT I THE COURT SHOULD NOT USURP THE STATE S REAPPORTIONMENT PROCESS First, the action improperly asks the federal judiciary to intervene in political questions and procedures reserved to the States including specifically the reapportionment plan that LATFOR is charged with developing, a process the courts have recognized to be within the province of the States and their legislative branches. See Chapman v. Meier, 420 U.S. 1, 27 (1975); see also Miller v. Johnson, 515 U.S. 900, 915 (1995). Because LATFOR is actively engaged in the process of developing its reapportionment plan, plaintiffs speculative challenge is premature and unnecessary.

10 Case 1:11-cv DLI-RLM Document 42-2 Filed 12/28/11 Page 3 of 4 PageID #: 376 POINT II THE PLAINTIFFS LACK STANDING Based upon the principles set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the plaintiffs lack standing as a matter of law. No plaintiff herein has suffered an injury in fact or otherwise alleged facts to confer standing. Indeed, LATFOR has not yet finalized its reapportionment plan. Instead, plaintiffs merely offer conjecture as to future events, which speculation is plainly insufficient to establish standing for the claims asserted herein. POINT III THE CLAIMS ARE NOT RIPE The claims presented herein are not ripe. As such, the plaintiffs have not presented an actual case or controversy and thereby deprive the Court of subject matter jurisdiction. The claims asserted by plaintiffs are not ripe because LATFOR has not yet finalized its reapportionment plan. Similarly, so much of the Complaint as is based upon the Prisoner Reallocation Law is not only unripe, but likely moot as well given recent developments concerning an agreement reached on that issue illustrating the fundamentally premature nature of the action. See Longway v. Jefferson County Bd. of Supervisors, 24 F.3d 397 (2d Cir.1994). The ripeness doctrine applies to all of the counts in the Complaint and compels dismissal of the action in its entirety. POINT IV PLAINTIFFS FAIL TO STATE AN EQUAL PROTECTION CLAIM Fourth, in addition to the foregoing defects, the plaintiffs Equal Protection claim fails as a matter of law because the Complaint does not plead the essential elements of such a claim i.e., that plaintiffs were treated differently from those similarly situated based upon

11 Case 1:11-cv DLI-RLM Document 42-2 Filed 12/28/11 Page 4 of 4 PageID #: 377 constitutionally impermissible considerations. Plaintiffs state no claim under the one-person one-vote principle since a.) their allegations as to the prior existing districts are patently immaterial and b.) their allegations as to the presently ongoing and developing reapportionment plan are premature and speculative. POINT V PLAINTIFFS FAIL TO STATE AN EQUAL PROTECTION CLAIM Finally, the due process claim likewise fails as a matter of law since it is undisputed and acknowledged that LATFOR s procedures offer the public notice and access and afford so much process as is due under the circumstances, because the claim is premature, and because plaintiffs have suffered no injury or constitutional deprivation. Conclusion Based upon the foregoing, and for the reasons more fully set forth in the Memorandum of Law submitted in support of the motion by co-defendant Kolb, which arguments are incorporated herein by reference, it is respectfully submitted that the Complaint, and each and every Count thereof, should be dismissed in its entirety as against defendant Oaks pursuant to FRCP Rule 12(b)(1) and (6). Respectfully submitted, SINNREICH KOSAKOFF & MESSINA LLP /s/ Jonathan Sinnreich Timothy Hill Attorneys for Defendant Robert Oaks 267 Carleton Avenue, Suite 301 Central Islip, New York (631)