SUPREME COURT STATE OF NEW YORK COUNTY OF OSWEGO In the Matter of the Application of DANIEL FARFAGLIA, AMY TRESIDDER,

DOUGLAS MALONE, BARBARA BROWN, JACOB MULCAHEY, JUNE RIVERS, GAY WILLIAMS, SAMUEL WEBER, JR., ALFRED GERISCH, RONALD GREENLEAF, AND MICHAEL KUNZWILER, Petitioners, For an Order, pursuant to Section 10(13)(a)(ii) of the Municipal Home Rule Law
VS.

Index No.: ORDER TO SHOW CAUSE

OSWEGO COUNTY OSWEGO COUNTY LEGISLATURE, DICK ATKINS, PEGGY BICKFORD, Commissioners, Constituting the OSWEGO COUNTY BOARD OF ELECTIONS Respondents, For an Order declaring invalid the twenty-five (25) Election Districts for the OSWEGO COUNTY LEGISLATURE Passed into law by the OSWEGO COUNTY LEGISLATURE on December 28, 2012 and formally adopted by the OSWEGO COUNTY BOARD OF ELECTIONS on March 11, 2013. Upon the Petition of FRANK HOUSH, Attorney at Law, Counsel to the Petitioners, and exhibits annexed thereto LIST EXHIBITS, and upon all proceedings heretofore had herein, it is hereby ORDERED, that the above named Respondents Special Term thereof to be held on or as soon thereafter as Counsel can be heard, why an Order shall not be made and entered herein: 1. Declaring null and void the twenty-five (25) Legislative Districts Passed into law by the OSWEGO COUNTY LEGISLATURE on December 28, 2012 and formally adopted by the OSWEGO COUNTY BOARD OF ELECTIONS on March 11, 2013; show cause before this Court at a

2. Declaring that all actions taken in the implementation of the aforesaid Election Districts are illegal, void, and against public policy, 3. Directing the Respondents OSWEGO COUNTY LEGISLATURE to reconvene the Committee on Reapportionment which will consist of an equal number of majority and minority party members to be selected by the Chairman of the Legislature (or acting Chairman) and the Minority Leader of the Legislature_ to create twenty-five (25) new Districts for the OSWEGO COUNTY LEGISLATURE which comport to the mandates of Section 10(13)(a)(ii) of the Municipal Home Rule Law; 4. Enjoining, restraining, and prohibiting Respondents OSWEGO COUNTY BOARD OF ELECTIONS from printing and placing the names of any candidates for the for election to the OSWEGO COUNTY LEGISLATURE to be used at any Primary or General Election in 2013; 5. Requiring that during the pendency of this action the OSWEGO COUNTY LEGISLATURE use the existing Legislative Districts at any Primary or General Election; 6. Granting such other, further, and different relief as the Court may deem just and proper; Sufficient reason appearing therefore, leave is hereby granted for Petitioners to submit, upon the return date of this Order to Show Cause and the argument and hearing thereof, such additional evidence, exhibits, and other proof as may be necessary, and it is further ORDERED that service of a copy of this Order to Show Cause, together with a copy of the papers upon which it was signed, be made upon the individual Respondents at their places of business on or before and that personal service of this Order to Show Cause and Petition be deemed good and sufficient service thereof. LET ANSWERING PAPERS be served upon Petitioner's Counsel by Mail and FAX at 716.242.3000 and email, frank@houshlaw.com no later than two (2) days prior to the return date hereof.

Justice of the Supreme Court Of the State of New York

SUPREME COURT STATE OF NEW YORK COUNTY OF OSWEGO

In the Matter of the Application of DANIEL FARFAGLIA, AMY TRESIDDER, DOUGLAS MALONE, BARBARA BROWN, JACOB MULCAHEY, JUNE RIVERS, GAY WILLIAMS, SAMUEL WEBER, JR., ALFRED GERISCH, RONALD GREENLEAF, AND MICHAEL KUNZWEILER, Petitioners, ATTORNEY'S AFFIRMATION IN SUPPRT OF ORDER TO SHOW CAUSE For an Order, pursuant to Section 10(13)(a)(ii) of the Municipal Home Rule Law
VS.

Index No.:

OSWEGO COUNTY OSWEGO COUNTY LEGISLATURE, DICK ATKINS, PEGGY BICKFORD, Commissioners, Constituting the OSWEGO COUNTY BOARD OF ELECTIONS Respondents, For an Order declaring invalid the twenty-five (25) Election Districts for the OSWEGO COUNTY LEGISLATURE Passed into law by the OSWEGO COUNTY LEGISLATURE on December 28, 2013 and formally adopted by the OSWEGO COUNTY BOARD OF ELECTIONS on March 11. 2013. FRANK HOUSH, ESQ., an attorney at law, declares the following under penalty of perjury: 1) I represent the Petitioners, DANIEL FARFAGLIA, AMY TRESIDDER, DOUGLAS MALONE, BARBARA BROWN, JACOB MULCAHEY, JUNE RIVERS, GAY WILLIAMS, SAMUEL WEBER, JR., ALFRED GERISCH, RONALD

GREENLEAF, AND MICHAEL KUNZWEILER in the above-captioned case.

2)

This affirmation has been divided into subheadings in accordance with the relief requested.

HISTORY OF OSWEGO COUNTY LEGISLATURE REDISTRICTING SINCE THE 1990 DICENTENNIAL CENSUS 3) The 1990 Census saw the first meaningful modernization of the County Legislative redistricting process. Prior to 1993, a complex, weighted system for the election County Legislature existed. This resulted in a Board of Legislators with thirty-six (36) members with a mixture of at-large and territorially-defined districts called "wards."

4)

Following a failed ad contentious political process, in 1993, Oswego County entered into a stipulation with plaintiffs in the case Goldych et al Oswego County et al, Exhibit A. This stipulation requires that "each Legislative District to be as equal in size as is practical and constitutionally and statutorily permissible." This effectively imposed a Court-mandated twenty-five (25) member Legislature, eliminating the weighted antiquated voting system.

5)

In response to the 2000 Census, on December 13, 2001 the Legislature adopted Resolution 226, Exhibit B. It should be noted that the 2000 plan allowed for no public hearings and was imposed after 'the General Government Committee has met several times with legal counsel" and effectively continued the plan imposed by the Goldych decision.

6)

A similarly contentious process followed the 2010 Census. In the end, on December 28,2012, the Oswego County Legislature adopted Local Law Number 9, Exhibit C, amending Local Law Number 1 of 1993, thus placing the redistricting scheme at issue with the mandates of the Goldych decision. THE PETITIONERS

7)

DANIEL FARFAGLIA is a member of the OSWEGO COUNTY LEGISLATURE and Minority Party Member of the Oswego County Reapportionment Committee.

8) 9) 10)

AMY TRESIDDER is a member of the Oswego County Legislature. DOUGLAS MALONE is a member if the Oswego County Legislature. BARBARA BROWN is a private citizen that resides in the Town of Palermo and is a former member of the Oswego County Legislature. The Town of Palermo is one of the five Oswego County towns redistricted in violation of the Municipal Home Rule

Law.
11) 12) JACOB MULC AHEY is a member of the Oswego County Legislature. JUNE RIVERS is a private citizen that resides in the Town of Mexico. The Town of Mexico is one of the five Oswego County towns redistricted in violation of the Municipal Home Rule Law. 13) GAY WILLIAMS is a private citizen that resides in the Town of Minetto. The Town of Minetto is one of the five Oswego County towns redistricted in violation of the Municipal Home Rule Law. 14) SAMUEL WEBER, JR. is a private citizen that resides in the Town of Mexico.

15)

ALFRED GERISCH is a private citizen that resides in the Town of West Monroe. The Town of West Monroe is one of the five Oswego County towns redistricted in violation of the Municipal Home Rule Law.

16)

RONALD GREENLEAF is a citizen of the Town of Hannibal and is also a public official. The Town of Hannibal is one of the five Oswego County towns redistricted in violation of the Municipal Home Rule Law.

17)

MICHAEL KUNZWILER is a member of the Oswego County Legislature and serves as Minority Leader. SECTION 10fl3aii) OF THE MUNICIPAL HOME RULE LAW

18)

New York Municipal Home Rule Law Section 10(a)(l)(13)(ii) reads: 10. General powers of local governments to adopt and amend local laws (13) The apportionment of its legislative body and, only in connection with such action taken pursuant to this subparagraph, the composition and membership of such body, the terms of office of members thereof, the units of local government or other areas from which representatives are to be chosen and the voting powers of individual members of such legislative body. Except for the equal apportionment requirements in subclause (i.) of clause (a.) and clause (c.) of this subparagraph, which shall apply generally to any local government, the power granted by this subparagraph shall be in addition to and not in substitution for any other power and the provisions of this subparagraph shall apply only to local governments which adopt a plan of apportionment thereunder. (a.) A plan of apportionment adopted under this subparagraph shall comply with the following standards, which shall have priority in the order herein set forth, to the extent applicable: (ii.) In such plan adopted by a county, no town except a town havin g more than one hundred and ten per cent of a full ratio for each representative, shall be divided in the formation of representation areas. Adjacent representation areas in the same town or city shall

not contain a greater excess in population than five per cent of a full ratio for each representative. HOW THE OSWEGO LEGISLATURE'S REDISTRICTING SCHEME VIOLATES SECTION 10(13)(aii) OF THE MUNICIPAL HOME RULE LAW 19) The United States Constitution requires that each district have about the same population: each federal district within a state must have about the same number of people, each political state and local district within a state must have the same number of people.

20)

The standard for Congressional Districts is quite strict, with each population required "as nearly as is practicable," Wesberry v. Sanders, 376 U.S. 1. In practice, this means that states must make a good-faith effort to draw districts with exactly the same number of voters in each political district.

21)

State and local legislative districts must follow a different, less strict standard of merely being "substantially equal," Reynolds v. Suns, 377 U.S. 533. This has been interpreted to mean local governments like the one in the case at bar are allowed a 10 percent deviation from the average population for each district. That deviation can be even 5 percent above to 5 percent below the average or it can have a higher or lower deviation, such as 7 percent above the average and 3 percent below.

22)

A total 10% overall population deviation among districts here entitles redistricting

authorities to a rebuttable presumption that the deviation was the result of an "honest and good faith effort" to reach population equality. Daly v Hunt 93 F.3rd 1212,1220 (4th Cir.l 996).

23)

This 10% rule is not absolute. It permits flexibility. Redistricting plans with deviation below 10% can be found to violate the law if the deviation results from an unconstitutional, irrational or arbitrary government policy (such as partisan or regional population bias within a plan). Deviations below 10% have been struck down when they are "tainted by arbitrariness or discrimination." Larios v. Cox 300 F. Supp.2dl320 (N.D. Ga. 2004) at 1338.

24)

Unless state or local law requires a different lower maximum population deviation standard, there is no requirement that a redistricting authority hold itself to a lower standard arbitrarily.

25)

Requirements that towns or villages not be split provide justification for higher-end deviations within the overall 10% window.

26)

The population deviation contained in Exhibit C is 6.91 %. Critically, the Plan splits five (5) Oswego County townships that don't meet the guidelines listed in The New York State Municipal Home Rule Law at 10(l)(ii)(a)(13)(c). The plan illegally divides the Towns of Hannibal, Mexico, Minetto, Palermo, and West Monroe.

WHY THE QSWEGO LEGISLATURE'S REDISTRICTING SCHEME MUST BE DECLARED NULL AND VOID 27) Oswego County's 2010 population, following prisoner adjustment data, was 122,325.

28)

The median population for each of the 25 Legislative Districts is therefore 4893. Applying the 10% threshold, the minimum number of voters in each district would be 4649; the maximum number would be 5138.

29)

The only exception to this is found in Municipal Home Rule Law 10(a)(l)(13)(ii) whereby if a Town's population is higher than the maximum number but not greater than 110% of the full ratio, or 5381.

30)

Exhibit C divides the Towns of Mexico, Hannibal, Palermo, Minetto, and West Monroe despite the fact that they do not fall within the Municipal Home Rule Law.

CONCLUSION 31) New York Municipal Home Rule Law Section 10(a)(l)(13)(ii) exists to serve an important public policy function and may not simply be disregarded within a redistricting scheme.

32)

The Legislature can easily make the necessary changes to adhere to the law or, in the alternative, can proceed to the next election cycle with the current district lines intact. As above, there is ample local precedent for this, as the current lines were imposed by

judicial mandate twenty (20) years ago and have remained in place due to the inability of the Legislature to create new lines in an orderly and legal manner.

DATED:

APRIL 30, 2013 Buffalo, New York

Respectfully Submitted,

Frank Housh Housh Law Offices 70 Niagara Street Buffalo, NY 14202 p.716.362.1128 | f 716.242.3000 frank@houshlaw. com