Opinion

Maslow v. Cuomo

Court
District Court, E.D. New York
Filed
Jan 11, 2021
Cited by
0 cases
Authority
More cited than 26.6%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Lori S. Maslow, in her capacity as

Democratic State Committee Female

Member, etc., et al. MEMORANDUM & ORDER

Plaintiffs, 20-cv-5934 (KAM)

- against –

Andrew M. Cuomo, in his capacity as

Governor of the State of New York;

and Letitia James, in her capacity as

Attorney General of the State of New

York; New York State Board of

Elections,

Defendants.

----------------------------------X

KIYO A. MATSUMOTO, United States District Judge:

On December 7, 2020, Lori S. Maslow, Benjamin C.

Steinberg, Marjorie Cohen, Willa M. Willis Johnson, the Kings

County Democratic County Committee (“KCDCC”), and the Executive

Committee of the KCDCC (collectively “plaintiffs” or “KCDCC”),

commenced this action by filing a complaint against Governor

Andrew M. Cuomo and Attorney General Leticia James (collectively

“defendants”). (ECF No. 1, Complaint.) Plaintiffs

simultaneously filed a motion seeking a temporary restraining

order and a preliminary injunction pursuant to Federal Rule of

Civil Procedure 65, enjoining defendants from “the imposition of

the State Court’s application of New York Election Law § 2-112 .

. . which resulted in the issuance of an Order requiring

Plaintiffs to hold an organizational meeting on December 17,

2020.” (ECF No. 2, First Motion for Temporary Restraining

Order.) Plaintiffs also sought to enjoin defendants from

enforcement of New York Election Law §§ 2-112 and 2-118 as

applied to Plaintiffs. Id.

On December 11, 2020, defendants moved under Federal

Rule of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss

plaintiffs’ complaint, respectively, for lack of subject matter

jurisdiction and for failure to state a claim upon which relief

can be granted. (ECF No. 13, Motion to Dismiss.) On that same

day, plaintiffs’ counsel in the two related State Court cases,

Ellington, et al. v. Kings County Democratic County Committee

and Stein, et al. v. Kings County Democratic County Committee

wrote to this court asking whether his clients should intervene

in the federal court action. (ECF No. 16, Letter from David

Stein.) Plaintiffs in this federal action filed their reply and

an amended complaint1 on December 14, 2020. (ECF No. 18, Reply;

ECF No. 19, First Amended Complaint.) This court held a show

cause hearing on December 15, 2020. For the reasons set forth

below plaintiff’s motion for injunctive relief is denied and

1 In their amended complaint, plaintiffs added the New York State Board of

Elections as a defendant. (ECF No. 19, First Amended Complaint.) This Order

does not apply to the New York State Board of Elections as this court has not

yet been informed as to whether this party has obtained representation. The

amended complaint also references the State Court’s December 10th Order in

Stein, et al. v. Kings County Democratic County Committee. Id.

defendants’ motion to dismiss Governor Cuomo and Ms. James is

granted.

BACKGROUND

Due to the COVID-19 pandemic, Governor Cuomo has

issued several Executive Orders limiting in-person gatherings.2

Specifically, on June 3, 2020, Governor Cuomo issued Executive

Order 202.47:

Notwithstanding any provision of law or a party's

rules to the contrary, any party caucus, party

meeting or party convention held pursuant to the

Election Law in the year two thousand twenty may

be held by telephonic or video conferencing means

in whole or in part at the discretion of the

chairperson calling such meeting; provided,

however, that any required notice shall include

instructions to participants as to how to access

such video teleconference.

On September 29, 2020, the Executive Committee of the

KCDCC amended Article III of the Rules for the Government of

Kings County Democratic County Committee (“the Rules”) by adding

§7 which discussed the protocols for organizational meetings as

a result of the COVID-19 pandemic:

The Chair of the Executive Committee shall

arrange for meetings of the County Committee to

be held in physical settings located in Kings

County, as then permitted by law, so that duly

filed original proxies and withdrawals of voting

2 On March 12, 2020, Governor Cuomo issued Executive Order 202.1 which

mandated that “any gathering or event for which attendance is anticipated to

be fewer than five hundred people, shall operate at no greater than fifty

percent occupancy.” This Order was modified on March 16, 2020 with Executive

Order 202.3 which stated that “any large gathering or event . . . shall be

cancelled or postponed if more than fifty persons are expected in

attendance.”

authorizations, as provided herein, may be

examined prior to or during the deliberations

attendant to those meeting in addition to

engaging in deliberative discourse and voting in

an accountable and verifiable manner. The Chair

shall not convene any meeting of the County

Committee, in which the voting may occur, via

teleconference or video teleconference to prevent

the disenfranchisement of members of limited

economic means and/or without access to the

internet or smart phone technology.

KCDCC Rules, Art. 3, §7(D). The amendment clarified

that the amendment itself “shall supercede the provisions of

each and every rule set forth within these Rules and the

corollary provisions of the Election Law . . ..” Id. Lastly,

§7(H) provided that “the members of the County Committee elected

or deemed elected at the primary election held on June 23, 2020.

. . be deemed seated and authorized to act as of the date of

such organization or at midnight, October 7, 2020, whichever

occurs first.” Id at §7(H).

In response to the Executive Committee’s amendment to

the Rules, a group of elected members of the KCDCC, who had been

elected on June 23, 2020, brought action in the Supreme Court of

the State of New York, Kings County. Ellington, et al. v. Kings

County Democratic County Committee, -N.Y.S.3d-, 2020 Slip Op.

20281 (Sup. Ct. Kings Cty. Oct. 27, 2020). The State Court

Ellington plaintiffs sought injunctive and declaratory relief

claiming that §7 conflicted with Election Law §2-112(1)(b)3 and

was therefore null and void. Id.

On October 27, 2020, the Honorable Edgar G. Walker

ordered that the KCDCC and its Executive Committee hold a

virtual organizational meeting on or before December 17, 2020,

stating that the “amendment conflicts with Election Law § 2-

112(1)(b) in that its prohibition against holding meetings via

video and teleconference effectively prevents KCDCCC from

holding any committee meeting given the current COVID-19 related

restrictions on large in-person gatherings.” Ellington, et al.

v. Kings County Democratic County Committee, -N.Y.S.3d-, 2020

Slip Op. 20281 (Sup. Ct. Kings Cty. Oct. 27, 2020) at 12. The

Ellington defendants (plaintiffs in this action) appealed the

October 27 Order and moved the Appellate Division to stay the

enforcement of the Ellington order pending appeal. Ellington,

et al. v. Kings County Democratic County Committee, Index No.

518630/2020 (N.Y. App. Div. 2d Dep’t.) On November 25, 2020,

the Second Department denied the motion to stay the enforcement

of the order. Id.

On November 29, 2020, the Executive Committee amended

Article II of the Rules by adding § 3a and § 5. “The proposed §

5 provision sought to create at large positions (four per

3 N.Y. Elec. Law § 2-112(1)(b) requires party committees to hold an

organizational meeting no earlier than September 17 and no later than October

1 following the June primary.

Assembly District) to be filled as vacancies by individuals

without regard to how they identify on the gender spectrum and

who are not required to declare a male or female sex designation

(nonbinary).” Stein, et al. v. Kings County Democratic County

Committee, Index No. 524201/2020 (Sup. Ct. Kings Cty. Dec. 11,

2020) at 3. Section 3a “authorized KCDCC’s Executive Committee

to directly appoint and fill all vacancies in the membership of

the County Committee existing prior to the time at which an

organizational meeting is held”:

§3 a. (a) Notwithstanding anything herein to the

contrary in these Rules or in the Election Law,

vacancies in the membership of the County

Committee existing prior to the time of the

organizational meeting of the County Committee

shall be filled for the unexpired term by the

Executive Committee. Nominations to fill such

vacancies shall be made in writing by either of

the following methods: (i) upon a majority vote

of the Assembly District Committee in and for the

Assembly District wherein such vacancy occurs,

upon certification by the Chairperson and

Secretary of the said Assembly District

Committee, (ii) upon the written nomination of

five members of the County Committee elected from

Election Districts within the Assembly District

wherein such vacancy occurs, or (iii) upon the

written nomination of a State Committee member

elected from the Assembly District wherein such

vacancy occurs. Said written nominations shall be

submitted to a person at a location and address,

by a date and time certain, designated by the

Chair of the Executive Committee.

In light of these amendments, the KCDCC Executive

Committee elected 2,400 non-binary Democrats to fill vacancies

in the KCDCC. (Compl. at 4.) On December 3, 2020, a group of

members of the KCDCC who were elected at the June 23, 2020

election, brought action in the Supreme Court of the State of

New York, King County, claiming that the new amendments were in

violation of Election Law §§ 2-112 and 2-1184. Stein, et al. v.

Kings County Democratic County Committee, Index No. 524201/2020

(Sup. Ct. Kings Cty. Dec. 11, 2020). On December 10, 2020,

Justice Walker granted the Stein plaintiffs declaratory relief

stating that “any appointments made prior to the required

virtual organizational County Committee meeting were null and

void under the Election Law.” Stein, et al. v. Kings County

Democratic County Committee, Index No. 524201/2020 (Sup. Ct.

Kings Cty. Dec. 11, 2020). Justice Walker found that the Rules

of the Kings County Democratic Committee were in violation of

the Election Law in that the Election Law required vacancies to

4 Election Law §2-118(1) provides: “In the case of the death, declination,

enrollment in another party, removal from the unit or removal from office of

a member of a committee, or the failure to nominate or elect a member, the

vacancy created thereby shall be filled by the remaining members of the

committee by the selection of an enrolled voter of the party qualified for

election from the unit of representation in which such vacancy shall have

occurred. When a state committee fills a vacancy pursuant to this

subdivision, the chairman or secretary of such committee shall, within ten

days after such vacancy is filled, file a certificate with the state board of

elections setting forth the name, address, and unit of representation of the

person so selected.” Section 2-118 (3) provides: “The county committee, upon

its organization after the election of its members, or at any time

thereafter, may determine that a vacancy or vacancies in such committee

exists by reason of an increase in the number of election districts within

the county occasioned by a change of the boundaries of one or more election

districts, taking effect after such election, and may determine the districts

that the elected members shall represent until the next election at which

members of such committee are elected. A vacancy so determined to exist shall

be filled as provided in subdivision one.”

be filled by the members of the County Committee, not the

Executive Committee. Id.

With the filing of their complaint, plaintiffs in this

action moved for a preliminary injunction and temporary

restraining order (“TRO”) enjoining the Ellington and Stein

State Court decisions. (See generally Compl.) The original

complaint alleged that “the irreparable harm attendant with the

State trial court’s Order mandating an organization meeting to

be held along with the enforcement of Election Law § 2-104 and §

2-118, as applied by the State and as the aforesaid Stein

plaintiffs are looking to apply the state law, warrant the

imposition of a Temporary Restraining Order to prevent

irreparable harm.” Id. at ¶74.

In their amended complaint and at the show-cause

hearing, plaintiffs recast the language from the original

complaint by withdrawing their request for a TRO and preliminary

injunction enjoining the State Court orders in Ellington and

Stein. See generally Transcript and ECF No. 19, Amended

Complaint. The amended complaint focuses on the alleged

unconstitutionality of the New York State Election Law.

Specifically, the amended complaint alleges that “New York State

Election Law § 2-112 as applied . . . violates KCDCC’s rights to

make its own rules with regard to the holding of it[‘s]

organizational meeting” and that “New York State Election Law §

2-118 as applied prohibits KCDCC[] from making rules for its own

governance.” (ECF No. 19, Amended Complaint at ¶¶31-32.) In

their amended complaint, plaintiffs no longer seek a TRO and

preliminary injunction enjoining the State Court orders, but

request declaratory relief and a permanent injunction enjoining

the State from applying the New York Election Law, § 2-112

regarding the holding of KCDCC’s organizational meeting, and §

2-118 regarding the filling of vacancies by the Executive

Committee of the KCDCC. Id. at ¶¶31-46.

DISCUSSION

A. Rules 12(b)(6) and 12(b)(1)

Defendants contend that “all claims against Governor

Cuomo and Attorney General James should be dismissed as they are

not proper parties to this action.” (ECF No. 15, Memorandum in

Support of Motion to Dismiss at 8.) When considering a motion

to dismiss under Rule 12(b)(6), a district court must “accept as

true all factual statements alleged in the complaint and draw

all reasonable inferences in favor of the non-moving party.”

McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.

2007) (citation omitted). In considering a 12(b)(6) motion, the

court may refer to “documents attached to the complaint as an

exhibit or incorporated in it by reference, to matters of which

judicial notice may be taken, or to documents either in

plaintiffs’ possession or of which plaintiffs had knowledge and

relied on in bringing suit.” Brass v. Am. Film Tech., Inc., 987

F.2d 142, 150 (2d Cir. 1993) (internal citations omitted); see

also Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.

1993) (clarifying that “reliance on the terms and effect of a

document in drafting the complaint is a necessary prerequisite

to the court’s consideration of a document on a dismissal

motion; mere notice of possession is not enough.”) (emphasis in

original).

To survive a motion to dismiss pursuant to Rule

12(b)(6), a complaint must contain sufficient factual matter,

accepted as true, to “‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

conduct alleged.” Id.

Defendants also contend that plaintiffs’ complaint

should be dismissed for lack of subject matter jurisdiction

pursuant to Rule 12(b)(1). “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). It is well-settled that the “plaintiff bears

the burden of proving subject matter jurisdiction by a

preponderance of the evidence.” Aurecchione v. Schoolman

Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing

Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002)). For

purposes of Rule 12(b)(1), the court must construe all

ambiguities and draw all inferences in the plaintiff’s favor.

Id. “The presence or absence of federal-question jurisdiction

is governed by the ‘well-pleaded complaint rule,’ which provides

that federal jurisdiction exists only when a federal question is

presented on the face of the plaintiff's properly pleaded

complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392

(1987). Here, as explained below, plaintiffs have failed to

allege facts implicating defendants in the alleged harms and,

therefore, the complaint must be dismissed.

B. Application

Plaintiffs assert that Governor Cuomo and Attorney

General James are proper parties to this action. They

erroneously contend that because a violation of the State Court

order “would subject the Executive Committee to criminal

contempt by the Attorney General,” the Attorney General has been

appropriately named. (ECF No. 18, Reply at 9.) Additionally,

plaintiffs again erroneously argue that the Governor is a proper

party because he issued an Executive Order allowing for virtual

meetings, which “result[ed] in the violation of

committeepersons’ constitutional rights of association.” (ECF

No. 18, Reply at 10.)

Defendants argued, both in their Motion to Dismiss and

at the show-cause hearing, that plaintiffs have “made no showing

whatsoever that either the Governor or the Attorney General are

engaged in any conduct that could be the subject of a proper

injunction under Rule 65 of the Federal Rules of Civil

Procedure.” (ECF No. 15, Memorandum in Support of Motion to

Dismiss at 8). At the show-cause hearing, defendants reiterated

that the Governor and the Attorney General “have no authority to

nullify a state court order” and “neither one of them under

separation of powers would have the authority to say . . . these

orders are nullified . . . .” (Transcript at 19.) In response,

plaintiffs contend that “the Attorney General would have

enforcement authority and that’s the predicate for [the]

contention that the Attorney General is involved.” Id. at 18.

Defendants further clarified, however, that the Attorney General

“has criminal enforcement [powers], not civil enforcement

[powers].” Id. at 19. Defendants also argued that plaintiffs

are not challenging the Governor’s executive order. Rather,

plaintiffs are challenging the elections laws, which makes both

Governor Cuomo and Attorney General James improper parties. Id.

at 44.

The court agrees with defendants. Plaintiffs have not

convinced this court that defendants, Cuomo and James, are the

proper parties. Wade v. New York City Dep't of Educ, No. 11

Civ. 05278(LGS), 2014 WL 941754, at *5 (S.D.N.Y. Mar. 10, 2014)

(citing Linder, 263 F. Supp. 2d at 590) (dismissing claims

because plaintiff failed to “include allegations against agents

of the City of New York,” as distinct from the BOE). The

Plaintiffs’ amended complaint clearly alleges that New York

State Election Law §§ 2-112 and 2-118 are unconstitutional “as

applied” to plaintiffs. (ECF No. 19, Amended Complaint at ¶¶

31-32,35-36, 43.) Though plaintiffs argue that they are no

longer asking the court to enjoin the State Court orders, the

amended complaint essentially pleads in the prayer for relief

that the court permanently enjoin the state from “imposing and

applying New York State’s Election Law to interfere with the

associational rights of plaintiffs.” (ECF No. 19, Amended

Complaint, Prayer for Relief ¶ c.) Plaintiffs are not arguing

that §§ 2-112 and 2-118 are facially unconstitutional. Rather,

by arguing that the State should be enjoined from imposing and

applying these sections, the plaintiffs are contending that the

State Court has applied these statutes in such a way that

infringes on plaintiffs’ rights. As a remedy for this alleged

harm, plaintiffs ask this court to enjoin the defendants from

“imposing and applying” the State Court orders. Defendants are

not parties to the state court litigation and do not have the

power to impose or apply said orders, nor reverse the State

Court decisions. Therefore, the claims against Cuomo and James

must be dismissed.

Defendants also contend that plaintiffs’ claims should

be dismissed due to lack of subject matter jurisdiction, citing

to the Rooker-Feldman doctrine and Pullman abstention doctrine.

(ECF No. 15, Memorandum in Support of Motion to Dismiss.) This

court need not address those arguments, as defendants Cuomo and

James are not the proper parties in this action. For the same

reasons, the court will only briefly address plaintiffs’ motion

for a preliminary injunction against the improperly named

defendants.

Although plaintiffs withdrew their motion to enjoin

the State Court orders, they did not withdraw their motion to

enjoin the Governor and the Attorney General from imposing and

applying the Election Laws at issue in the State Court orders.

“A party seeking a preliminary injunction must show ‘(a)

irreparable harm and (b) either (1) likelihood of success on the

merits or (2) sufficiently serious questions going to the merits

to make them a fair ground for litigation and a balance of

hardships tipping decidedly toward the party requesting the

preliminary relief.’” Cacchillo v. Insmed, Inc., 638 F.3d 401,

405-06 (2d Cir. 2011) (quoting Citigroup Global Mkts., Inc. v.

VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d

Cir. 2010)); Fed. R. Civ. P. 65(b)(1)(A).

Plaintiffs fail to demonstrate irreparable harm as

required for preliminary injunctive relief. The Second Circuit

has defined “irreparable harm” as “certain and imminent harm for

which a monetary award does not adequately compensate,” noting

that “only harm shown to be non-compensable in terms of money

damages provides the basis for awarding injunctive relief.”

Wisdom Import Sales Co., L.L.C. v. Labatt Brewing Co., Ltd., 339

F.3d 101, 113-14 (2d Cir. 2003); see also Kamerling, 295 F.3d at

214 (“To establish irreparable harm, a party seeking preliminary

injunctive relief must show that there is a continuing harm

which cannot be adequately redressed by final relief on the

merits and for which money damages cannot provide adequate

compensation.” (internal quotation omitted)). Because neither

Cuomo nor James is a proper party in this litigation, issuing an

injunction against them will do nothing to prevent the alleged

harms. Neither the Governor nor the Attorney General has the

authority to enforce or apply the State Court’s orders, nor do

they have the authority to invalidate the orders.

Accordingly, the defendants’ motion to dismiss

defendants Cuomo and James is granted and the plaintiffs’ motion

for a temporary restraining order and preliminary injunction

against defendants, Cuomo and James, is denied. The plaintiffs’

counsel is respectfully ordered to serve a copy of this order on

the New York State Board of Elections and note service on the

docket within two business days of the date of this Memorandum

and Order. SO ORDERED.

Dated: Brooklyn, New York

January 11, 2021

/s/

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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