Supreme Court, Erie County, December 19, 2022

The Law Office of Stephanie A. Adams, PLLC, Buffalo (Stephanie Ann Adams of counsel), and Law Office of Adam L. Bojak, Buffalo (Adam L. Bojak of counsel), for petitioners.

Phillips Lytle LLP, Buffalo (Craig R. Bucki and Steven Briggs Salcedo of counsel), and Timothy A. Ball, Corporation Counsel, Buffalo (Carin S. Gordon of counsel), for Common Council of the City of Buffalo and others, respondents.

[*2]Jeremy Christopher Toth, County Attorney, Buffalo, for Erie County Board of Elections, respondent.

Petitioners commenced this CPLR article 78 proceeding (Doc 1) seeking the following relief:

"that this Court temporarily and permanently enjoin any further action by Respondents based on the district boundaries created by the 2022 Process; that the legislation signed into law by Respondent Mayor on August 15, 2022 and duly submitted to the New York Department of State for publication as required by law (attached as 'B') be {**77 Misc 3d at 1110}annulled; that the creation of an alternate set of district boundaries derived from a compliant process be directed; that said process will abide by the requirements of the Open Meetings Law."

Respondents Common Council of the City of Buffalo (Common Council), the Honorable Byron Brown (Mayor), and City of Buffalo (City, collectively with the Common Council and Mayor, City respondents) oppose the application and seek dismissal of the verified petition.

By way of brief background, the City's elected representatives enacted a Common Council District Map during the summer of 2022 (map). Petitioners seek to invalidate the map, notwithstanding that they had ample opportunity to participate in the redistricting process.

For the reasons that follow, the requested relief is denied and the verified petition is dismissed.

A. The City's Redistricting Process

Every 10 years, cities and states throughout the United States redraw their legislative-district maps in response to the decennial census. In Buffalo, the redistricting process for Common Council (the City's legislature) districts consists of several stages that are described in the City's Charter. First, the City solicits nominations of Buffalo residents to serve on a Citizens Advisory Commission on Reapportionment (Citizens Commission) (Charter § 18-12). The Common Council then selects five individuals (whether nominated or not) to serve on the Citizens Commission, and the Mayor selects four (id.). The Citizens Commission, after holding at least one public hearing, submits "recommendations to the [Common Council] concerning the number of district and at-large council seats and a plan for dividing the city into districts for the election of [Common Council] members" (id. § 18-13).

At the next stage of the process, the Common Council considers the Citizens Commission's proposed map, holds at least one public hearing, and adopts a final map (id. § 18-14). The map adopted by the Common Council need not adhere to the Citizens Commission's proposed map (id.). The Common Council's map is then sent to the Mayor, who must hold another public hearing (id. § 18-15). After that hearing, the Mayor must "act[ ] on the [*3]redistricting plan adopted by the [Common Council]" (id.). When the final map becomes law, it is "transmitted to the board of elections" (id.).

The Charter sets forth deadlines for the various steps of this process (id. §§ 18-12—18-15). It also defines substantive {**77 Misc 3d at 1111}criteria that the Citizens Commission and the Common Council must consider when formulating their redistricting plans (id. § 18-16).

B. The Coronavirus Pandemic and the 2020 Census Results

By law, census data must be transmitted to the states "within one year after the decennial census date," which is April 1 (13 USC § 141 [a], [c]). Due to the coronavirus pandemic, the applicable census data first became available on August 12, 2021, more than four months after the statutory deadline (Doc 27 ¶ 3). Between August 1 and August 22, 2021, the City ran an advertisement in The Buffalo News seeking nominations for the Citizens Commission (Doc 44-46; R 378-384) ("R" refers to the administrative record for this special proceeding). The record reflects that no petitioner submitted a nomination or otherwise applied to serve on the Commission. By January 25, 2022, the Common Council had appointed five members to the Commission, and the Mayor appointed the remaining four members one month later (Doc 17; exhibits G, H).

The Citizens Commission held four public meetings and a public hearing, as required by the Charter. The Citizens Commission held its first public meeting on April 20, 2022, from 5:40 p.m. to 7:10 p.m. (Doc 44-46; R 673-674). The City notified various media outlets of this meeting eight days earlier (Doc 44-46; R 327-329, 673).

The Commission held a second public meeting on May 4, 2022, from 5:38 p.m. to 8:10 p.m. (R 675-676). The City notified various media outlets of this meeting one week earlier (R 330-332). The Citizens Commission held a third public meeting on May 11, 2022, from 5:33 p.m. to 6:44 p.m. (R 677-678). The City notified the media of the meeting beforehand, on May 4, 2022 (R 336-338).

On May 18, 2022, at 5:34 p.m., the Citizens Commission held a public hearing as required by section 18-13 of the Charter (R 679). The City notified the media of this public hearing twice: on April 28, and again on May 16, 2022 (R 333-335, 342-345). The first of those two media advisories stated that the hearing would be livestreamed on the Common Council Facebook page, and that members of the public could participate remotely through Zoom (id.). Additionally, notice of the hearing was posted on the Common Council's social media channels four times: twice on May 11, and twice on May 13, 2022 (Doc 28 ¶ 6; R 688-693). Yet only one member of the public spoke at the hearing: Arthur Robinson, president of a block{**77 Misc 3d at 1112} club in southeast Buffalo (R 515). He stated on the record, "I've gone over [the] maps and the numbers and I think it's a very good and appropriate map. And I think all the members have done their due diligence on this."

The Citizens Commission held a final public meeting the next day, from 5:36 p.m. to 6:38 p.m. (R 681-682). It was preceded by a media advisory sent to members of the press on May 11, 2022 (R 339-341). At the May 19 meeting, the Citizens Commission unanimously finalized its proposed redistricting map, which was filed with the Common Council that day (Doc 28 ¶ 9; R 681-682).

C. The Common Council and the Mayor Enact a Redistricting Map

On May 19, 2022, the City created a webpage dedicated to redistricting (R 315; Doc 28 ¶ 8). On June 14, 2022, the City Clerk's Office announced that the Common Council would hold a public redistricting hearing on June 28, 2022, in accordance with section 18-14 of the Charter (Doc 28 ¶ 9). During the following two weeks, the City advertised the public hearing through various channels: June 14, 2022: notice published in The Buffalo News. June 15, 2022: notice published on the Common Council's Facebook and Twitter accounts; media advisory sent to the local press (R 316). June 17-22, 2022: notice published in The Buffalo News (R 350-354). June 22, 2022: notice published on the Common Council's Facebook and Twitter accounts; media advisory sent to the local press (R 318). June 24, 27, and 28, 2022: notice published on the Common Council's Facebook and Twitter accounts (R 319-320); June 27, 2022: media advisory sent to the local press (R 320). The hearing began at 5:00 p.m. (R 346-347). Approximately 65 people attended in person, 40 participated remotely through Zoom, and the hearing was livestreamed on Facebook (R 321, 558). The livestream garnered 42 "likes," 249 comments, and 33 "shares" (R 321). The Common Council received 75 pages of comments from individuals who were unable to attend in person or remotely (R 105-180).

The Common Council scheduled a "Special Session to vote on City reapportionment" for July 1, 2022 (R 322); however, the Special Session was cancelled, in order "to provide more time to review and consider the details associated with the proposed maps and public input" (R 323). The Special Session was rescheduled for July 12, 2022 (R 323-324).

The Common Council postponed its redistricting vote again, to July 19, 2022. The day before, the City sent a media advisory{**77 Misc 3d at 1113} to the local press, and notice of the meeting was posted on the Common Council's social media accounts (R 324-325). Notice was again posted on social media the morning before the July 19 vote (R 325). At the July 19 meeting, which was livestreamed on Facebook, the Common Council approved the map (R 326, 643-644). In accordance with Charter § 18-15, the Mayor held a public hearing on August 3, 2022, in the auditorium at the Burchfield Penney Art Center (R 645). Notices were sent to the media on July 22, 2022, and the meeting notices' run date began on July 26, 2022 (Doc 28 ¶ 18). At least 25 people spoke at the hearing, which lasted about 80 minutes (R 645-672). The Mayor approved the map, which was later transmitted to the New York State Department of State (R 274-295).

D. The Redistricting Process and the Charter Timeline

[1] Petitioners contend that the City respondents "delay[ed] the formation of the Citizens Commission beyond what could reasonably be justified by the circumstances and caus[ed] delays that resulted in a rushed [redistricting] process" (Doc 1 ¶ 146). Presumably, the unspecified "delays" concern the dates when certain events in the redistricting process occurred (see e.g. id. ¶¶ 48-52, 65-68). However, any delays that may have occurred were justified by extraordinary circumstances outside the City respondents' control. Due to the coronavirus pandemic, the release of census data was delayed until August 12, 2021—more than four months past the April 1 statutory deadline (Doc 27 ¶ 3). Consequently, the Citizens Commission could not possibly have finalized its proposed map by June 2021, and the Common Council could not have finalized its proposed map in July 2021. In order to complete the redistricting process by September 2021, it would have had to have been condensed into a single month. Complying with the 2021 [*5]timeline urged by petitioners would have created a "rushed" process, of which they complain. Instead, by extending the process to 2022, the City respondents gave the public time to participate.

Additionally, Municipal Home Rule Law § 10 was amended effective October 27, 2021 (Doc 30). Those amendments revised the standards governing municipal redistricting throughout the state (id.). To complete the redistricting process before those new standards were finalized would have resulted in a waste of public resources. Faced with two unique circumstances—the late census data and the amendments to the Municipal Home Rule Law—the City reasonably determined that {**77 Misc 3d at 1114}redistricting should occur in 2022, not 2021. This determination was not "arbitrary and capricious," as petitioners contend (Doc 1 ¶ 143).

Equally important, the Charter's language did not foreclose a delay in redistricting. The Charter provides for redistricting during "the year following the decennial census" (Charter § 18-12). In contrast, other redistricting timelines in New York are more specific. For example, the New York Constitution provides that statewide redistricting begins in "each year ending with a zero" (NY Const, art III, § 5-b [a]). Similarly, the redistricting ordinance for the City of Syracuse requires redistricting plans to be finalized "no later than June 1 of each year ending in number two" (Doc 30, exhibit I at 10). "[T]he year following the decennial census" is less clear. The census process ended in 2021 when the necessary data was released, so the City did not "abuse [its] discretion" by redistricting in 2022. Following a 2022 timeline, the City complied with the deadlines described in the Charter.

The City respondents' decision to redistrict in 2022, rather than 2021, was not a novel one. During the 1980 and 1990 cycles, "final redistricting plans [for Buffalo] were not approved until a year after the [census] population figures were finalized" (Baines v Masiello, 288 F Supp 2d 376, 396 [WD NY 2003]). Moreover, the 2000 process was strikingly similar to what occurred this year. The data from that census were released in March 2001 (five months earlier than they were released for the 2020 cycle), but the City planned to challenge the data's accuracy. (Id. at 395.) Because the challenge would necessarily delay the redistricting process, the City decided to redistrict in 2002, not 2001 (id. at 381). According to (then) Common Council President James Pitts, "[w]e've determined that in order to allow for a fair and reasonable public process, we should extend the timeline . . . . It's certainly better than trying to squeeze out a plan that would likely become very controversial" (id. at 395-396). However, Buffalo residents commenced litigation in federal and state courts, seeking to invalidate the resulting map for various reasons (id. at 380, 396), including that the Charter's redistricting deadlines were not met (id. at 395). The District Court declined to exercise supplemental jurisdiction over this claim (id.). In the related state court case, the claim was dismissed (Pitts v City of Buffalo, 2004 WL 5452799 [Sup Ct, Erie County, Feb. 6, 2004], affd 19 AD3d 1030 [4th Dept 2005]).{**77 Misc 3d at 1115}

Assuming arguendo the Charter's deadlines should have been met in 2021, no prejudice resulted from any delay. Notwithstanding petitioners' allegations to the contrary, not a single stage of the process was "rushed" (Doc 1 ¶ 146). The Citizens Commission was established approximately 75 days before its deadline to finalize a proposed map, which approximately matches the time frame established by the Charter. Similarly, the Common Council stage of the process lasted two months, and the mayoral stage lasted about one month, well within established parameters.

E. The Open Meetings Law

Petitioners allege two categories of Open Meetings Law violations, both of which are aimed solely at the Citizens Commission: (1) "of the five meetings reportedly held by the Citizens Commission, only one meeting . . . was publicized in advance as required by Public Officers Law § 104"; and (2) "the minutes of those meetings were not made available to the public as required by Public Officers Law § 106 (3)" (Doc 1 ¶¶ 156, 158).

Causes of action alleging violations of the Open Meetings Law are subject to a four-month statute of limitations (Jones v Bay Shore Union Free Sch. Dist., 170 F Supp 3d 420, 434 [ED NY 2016]). The four-month clock starts, at the latest, when minutes of the challenged meeting are released to the public (Matter of Smith v City Univ. of N.Y., 92 NY2d 707, 717 [1999]; Matter of Brander v Town of Warren Town Bd., 18 Misc 3d 477, 486-487 [Sup Ct, Onondaga County 2007]).

[2] Petitioners' Open Meetings Law cause of action refers to "the five meetings reportedly held by the Citizens Commission" (Doc 1 ¶¶ 156, 158). However, minutes of those meetings were "received and filed" by the Common Council in May 2021 (R 683-687). When minutes are "received and filed" by the Common Council, they immediately become publicly available on the Common Council's "Meeting Calendar" webpage (http://buffalony.iqm2.com/Citizens/Calendar.aspx) (Doc 28 ¶ 8). Thus, the four-month statute of limitations applicable to an Open Meetings Law cause of action expired by September 30, 2022. Petitioners commenced this lawsuit on October 18, 2022 (Doc 1). Thus, claims based upon the Open Meetings Law are time-barred.

Equally relevant, the Open Meetings Law governs entities that qualify as a "public body" under Public Officers Law § 102 (2). Because the Citizens Commission does not require a quorum to conduct its business under the Charter or the General{**77 Misc 3d at 1116} Construction Law, it is not a "public body," and is not subject to the Open Meetings Law (see e.g. Matter of Poughkeepsie Newspaper Div. of Gannett Satellite Info. Network v Mayor's Intergovernmental Task Force on N.Y. City Water Supply Needs, 145 AD2d 65 [2d Dept 1989 per curiam]).

F. The Map's Substance

[3] Buffalo's redistricting maps must comply with substantive criteria imposed by two sources: Municipal Home Rule Law § 10 (1) (ii) (a) (13) and Charter § 18-16. Petitioners bear the burden to demonstrate that the map fails to satisfy those criteria; otherwise, their substantive challenge fails (Bay Ridge Community Council v Carey, 115 Misc 2d 433, 442 [Sup Ct, Kings County 1982], affd 103 AD2d 280 [2d Dept 1984], affd 66 NY2d 657 [1985]). Petitioners fail to address these criteria; the petition is directed to almost entirely the redistricting process, not its outcome. The petition does, however, purport to "incorporate[ ] . . . by reference" a 91-page, 260-paragraph, single-spaced "Expert Report" of Dr. Russell Weaver, who claims to analyze the map's substance (Doc 1 ¶ 120). Dr. Weaver contends OCAB Map 1 and the related OCAB Map 2 are preferable to the map. However, this is not the appropriate inquiry. A redistricting map devised by the people's elected representatives takes precedence over a map proposed by a vocal minority of [*7]residents (see Slater v Board of Supervisors of County of Cortland, 69 Misc 2d 842, 845 [Sup Ct, Madison County 1972] ["Plaintiff has submitted a . . . district plan which also appears to meet constitutional standards. However, a plan meeting constitutional standards submitted by the representative body of the county takes precedence over plaintiff's plan"], affd 42 AD2d 795 [3d Dept 1973]). The issue is not whether the map is the best possible map. Rather, it is whether the map "substantially complies" with legal requirements (Matter of Schneider v Rockefeller, 31 NY2d 420, 427 [1972]; accord Valentino v County of Tompkins, 288 AD2d 606, 608 [3d Dept 2001]). Indeed, as the Court of Appeals has held, legislatures are entitled to great deference with respect to redistricting:

"Balancing the myriad [redistricting requirements] is a function entrusted to the Legislature. It is not the role of this, or indeed any, court to second-guess the determinations of the Legislature, the elected representatives of the people, in this regard. We are hesitant to substitute our own determination for that of the Legislature even if we would have{**77 Misc 3d at 1117} struck a slightly different balance on our own." (Matter of Wolpoff v Cuomo, 80 NY2d 70, 79 [1992].)

Dr. Weaver's analysis does not demonstrate that the map falls short of legal requirements. Rather, it falls well within the range of options the Common Council was entitled to select.

G. Preliminary Injunction Analysis

[4] Petitioners request a preliminary injunction "barring Respondents from taking any action based on the [enacted map] during the pendency of this Article 78" (Doc 2 at 2). For the reasons set forth above, the petition shall be dismissed. Even if this court were to determine that further proceedings are necessary, a preliminary injunction during the pendency of those proceedings is not warranted. "It is well settled that preliminary injunctive relief is a drastic remedy that is not routinely granted" (Eastview Mall, LLC v Grace Holmes, Inc., 182 AD3d 1057, 1058 [4th Dept 2020] [alterations omitted]). In order to prevail on an application for a preliminary injunction, the moving party must show "a probability of success, danger of irreparable injury in the absence of an injunction, and a balance of the equities in [its] favor" (Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 [1990]). Petitioners failed to meet their burden (by clear and convincing evidence) on this application.

Notably, petitioners rely on Dr. Weaver's report (Doc 17 ¶ 260):

"Basis for Preliminary Injunction Pending Decision

"Now that the Mayor has signed [the map] into law, the plan will be shared with the Erie County Board of Elections (BOE). Erie BOE will use that map to draw new election precincts, which will be used as the basis for making new maps and allocating various internal resources. Those actions are associated with real labor, supply, and monetary expenditures that should not begin . . . until [the map] is vetted through the proper legal channels."

Neither the term "irreparable" nor "equities" appears in the preceding paragraph. Dr. [*8]Weaver appears to posit that an injunction is necessary in order to prevent "labor, supply, and monetary expenditures." Such expenditures do not constitute harm to petitioners, and economic harm is not irreparable (see Mangovski v DiMarco, 175 AD3d 947, 949 [4th Dept 2019] ["Economic loss, which is compensable by money damages, does not constitute irreparable harm"]; see also White v F.F.{**77 Misc 3d at 1118}Thompson Health Sys., Inc., 75 AD3d 1075, 1076-1077 [4th Dept 2010] [reversing lower court order granting a preliminary injunction, because the moving party failed to satisfy its burden to substantiate irreparable harm]).

Accordingly, it is hereby ordered that the relief requested in the verified petition is denied and the verified petition is hereby dismissed, with prejudice.