JOSEPH F. BIANCO, District Judge:
Plaintiff Patricia Weiss ("plaintiff" or "Weiss") commenced this action on June 8, 2010, against defendants Incorporated Village of Sag Harbor ("Village" or "Sag Harbor"), Sag Harbor Village Board of Trustees ("Board of Trustees"), Mayor Brian Gilbride ("Gilbride"), Trustee Edward J. Gregory, Trustee Robby Stein, Trustee Timothy Culver, Trustee Tiffany Scarlato ("Scarlato") and Does 1-5 (collectively, "defendants"), alleging various violations of her constitutional rights pursuant to 42 U.S.C. § 1983. Specifically, the gravaman
Plaintiff Patricia Weiss is an attorney who resides in the Village of Sag Harbor, located in Suffolk County, New York. (Compl. ¶ 1.) According to the complaint, in or about 2005, the Village began taking steps to establish a Justice Court for Sag Harbor. (Id. ¶¶ 17-20.) Specifically, in May 2005, defendants Gilbride and Scarlato, both members of the Sag Harbor Board of Trustees, circulated a nominating petition that, inter alia, included the name for a judicial candidate, Roger Walker, who was not a lawyer. (Id. ¶ 20.) In addition, in December 2005, the Village entered into a $50,000 contract with a company that would "`coordinate and provide [various enumerated] products and services to establish, organize and implement a Justice Court for [the] Village of Sag Harbor and to integrate the Judiciary Branch into the Village and Village Government.'" (Id. ¶ 17.) However, because the nominating petition was circulated before the Village passed any resolution creating the office of Village Justice (id. ¶ 19), plaintiff brought an Article 78 petition challenging the Village's actions. (Id. ¶ 21.) In June 2006, prior to the general election, a Suffolk County Supreme Court Justice "effectively cancelled the election for Village Justice," after concluding that "`the office of village justice for the Village of Sag Harbor was never `established' as contemplated by Village Law § 3-301(2)(a).'" (Id.)
Subsequently, on June 27, 2006, the Village held a special meeting and passed a resolution that, inter alia, approved the creation of the Office of Village Justice. (Id. ¶ 22.) At that time, the Board of Trustees "stated an intention to operate out of the [Village] Municipal Building," but, according to the complaint, did not obtain an appropriate Environmental Assessment Form, as required by the New York State Environmental Quality Review Act ("SEQRA"). (Id.) Plaintiff attempted to collect a sufficient number of voter signatures in order to petition for a public vote but was hampered from doing so by a Village law that "prohibited Plaintiff from leaving any `unsolicited print material' on the doorstep of any resident of the Village." (Id. ¶ 23.) After the Village amended the law to make it a misdemeanor
Several years later, in October 2009, the Board of Trustees revisited the idea of creating a Village Justice Court. (Id. ¶ 27.) The Village prepared a proposed resolution to create the office of Village Justice and scheduled a public hearing on the matter for February 6, 2010. (Id. ¶ 30.) At the hearing, which carried over to a second day on March 9, 2010 (id.), defendant Gilbride explained what he envisioned the responsibilities of the Justice Court would be and where the Court would be housed. (Id. ¶¶ 33-42.) In particular, Gilbride noted that the Justice Court would handle "lower level" tickets and offenses, rather than felonies, and would operate on a part-time basis. (Id. ¶¶ 38-41.) Additionally, he explained that the courtroom would be located at the Village Municipal Building in the same meeting room used by all of the Village Boards, with the Mayor's office available to the Justices and the Trustee's room available to the court clerk. (Id. ¶¶ 33-34.) Defendant Culver also added that no physical alterations were needed to the room or the building in order to begin the operation of the court. (Id. ¶ 35.)
On May 11, 2010, the Board of Trustees passed the resolution authorizing the enactment of Local Law # 5 and creating the offices of Village Justice and Acting Village Justice. (Id. ¶¶ 49, 51.) At the time the complaint was filed, no Village Justices had yet been elected or appointed and the Justice Court had not begun operations.
Plaintiff filed her complaint in this action on June 8, 2010. On September 13, 2010, defendants moved to dismiss the complaint. Plaintiff filed her opposition to defendants' motion on October 11, 2010, and defendants filed their reply on October 25, 2010. The Court heard oral argument on December 20, 2010. This motion is fully submitted, and the Court has considered all of the submissions and arguments of the parties.
Defendants have moved to dismiss the complaint under both Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure.
"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). In reviewing a motion to dismiss under Rule 12(b)(1), the court "must accept as true all material factual allegations in the complaint, but we are not to draw inferences from the complaint favorable to plaintiffs." J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir.2004) (citation omitted). Moreover, the court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but we may not rely on conclusory or hearsay statements contained in the affidavits." Id. (citations omitted). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of
In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006). "In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient `to raise a right to relief above the speculative level.'" Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir.2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This standard does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
The Supreme Court recently clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth a two-pronged approach for courts deciding a motion to dismiss. ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court instructed district courts to first "identify[ ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." 129 S.Ct. at 1950. Though "legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Second, if a complaint contains "well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "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 misconduct alleged. The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 1949 (quoting and citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (internal citations omitted)).
The Court notes that, in adjudicating this motion, it is entitled to consider: "(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents `integral' to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence." In re Merrill Lynch & Co., Inc., 273 F.Supp.2d 351, 356-57 (S.D.N.Y.2003) (internal citations omitted), aff'd in part and vacated in part on other grounds sub nom., Dabit v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 395 F.3d 25 (2d Cir. 2005), vacated on other grounds, 547 U.S. 71, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) ("[T]he district court . . . could have viewed [the documents] on the motion to dismiss because there was undisputed notice to plaintiffs of their contents and they were integral to plaintiffs' claim."); Brodeur v. City of N.Y., No. 04 Civ. 1859, 2005 WL 1139908, at *2-3, 2005 U.S. Dist. LEXIS 10865, at *9-10 (E.D.N.Y. May 13, 2005) (stating court could consider documents within the public domain on a Rule 12(b)(6) motion to dismiss).
"A court presented with a motion to dismiss under both Fed.R.Civ.P. 12(b)(1) and 12(b)(6) must decide the `jurisdictional
Plaintiff has asserted five claims against defendants. In Count One, plaintiff alleges that her First, Fourth, Fifth, Sixth, and Fourteenth Amendment rights have been violated by the establishment of the Village Justice and Acting Village Justice positions insofar as those offices may be filled by non-lawyers who, despite their lack of legal training, will be authorized to incarcerate individuals appearing before them. (See Compl. ¶¶ 50-99.) In Count Two, plaintiff claims that she has been deprived of the right to vote and elect a Village Justice, in violation of her due process and First Amendment rights, because defendants have threatened to appoint, rather than elect, individuals to the Village Justice positions. (Id. ¶¶ 100-16.) Plaintiff further claims in Count Three that her constitutional right to petition has been infringed upon through defendants' intentional failure to update County and Village voter registers, thus violating her First, Fifth, and Fourteenth Amendment rights. (Id. ¶¶ 117-31.) In Count Four, plaintiff alleges that her First, Fifth, and Fourteenth Amendment rights have been violated through the "part-time" operation of the Justice Courts. (Id. ¶¶ 132-72.) Finally, in Count Five, plaintiff claims that defendants have violated various environmental regulations and the National Housing Preservation Act through the decision to run the court out of the Village Municipal Building. (Id. ¶¶ 173-93.) The Court will address each of these contentions in turn.
As an initial matter, before turning to plaintiff's arguments, the Court notes that plaintiff has brought four of her five claims (Counts One through Four) under 42 U.S.C. § 1983. Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 145 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).
In Count One of her complaint, plaintiff asserts that her constitutional rights have been violated because Local Law # 5 allows the Village Justice or Acting Village Justice positions to be "filled now and in the future by non-lawyers who are wholly lacking in sufficient legal training and legal competence to perform all jurisdictional functions of a Village Court as mandated by state law." (Compl. Count I.) Defendants have moved to dismiss this claim on the grounds that: (1) plaintiff lacks standing; (2) the claim is not ripe for adjudication; and (3) the Village law is constitutional.
Although plaintiff has not appeared as a defendant before the Justice Court, plaintiff presents a series of hypotheticals that she argues demonstrate the high likelihood that her constitutional rights will be infringed upon because the Village Justice positions may be filled by non-lawyers. Specifically, plaintiff presents the following hypothetical scenario as support for her claim that the establishment of the Justice Courts infringes upon her constitutional rights. First, plaintiff states that she "occasionally" participates in "the traditional Jewish custom of reciting the blessing over wine in Hebrew at a religious service held at the local Sag Harbor synagogue." (Id. ¶ 91a.) After reciting this blessing, plaintiff drinks some of the wine and then drives home from the synagogue. (Id.) Next, plaintiff notes that the "parking area for her home is located in full view of, and across from" the Sag Harbor police station, and she "fears being arrested if she admits to drinking." (Id. ¶ 91b.) Plaintiff then jumps to the conclusion that because she may participate in a religious ceremony that involves drinking wine, she may drive home after, and she might get pulled over because she lives across the street from a police station, then she "perhaps very soon, or eventually" will be "subjected to a deprivation of her constitutionally protected rights" if a non-lawyer Village Justice were to, inter alia, suspend her drivers license or incarcerate her. (Id. ¶ 91 a-f.)
To state plaintiff's argument is to prove that she lacks standing to bring this
To meet Article III's injury-in-fact requirement, plaintiff's alleged injury "must be `concrete and particularized' as well as `actual or imminent, not conjectural or hypothetical.'" Baur v. Veneman, 352 F.3d 625, 632 (2d Cir.2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (additional quotation marks omitted)); see, e.g., Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 89 (2d Cir.2009) (finding that plaintiffs had adequately articulated Article III injury by alleging that they have paid higher tolls as a result of defendant's policy). Furthermore, the alleged injury must "affect[] the plaintiff in a personal and individual way to confirm that the plaintiff has a personal stake in the controversy and avoid having the federal courts serve as merely publicly funded forums for the ventilation of public grievances or the refinement of jurisprudential understanding." Baur, 352 F.3d at 632 (internal quotation marks and citations omitted).
Here, it is abundantly clear that the injury allegedly suffered by plaintiff is merely "conjectural and hypothetical" and does not rise to the level of "concrete and particularized" injury needed to establish Article III standing. Indeed, even plaintiff acknowledges in her complaint that she has not yet been injured and may only suffer an injury "perhaps very soon, or eventually." (Compl. ¶ 91c.) Moreover, not only has plaintiff never appeared as a defendant in the Justice Court—and therefore has never been actually injured by the operation of the Justice Court—but there also is no indication whatsoever that she has ever been pulled over for the type of drunk driving offense described in her complaint, much less arrested, convicted, and incarcerated for that offense. Plaintiff's lack of an actual or imminent injury is further underscored by the fact that the current Village Justice is, in fact, an attorney, as noted supra in note 2. Thus, plaintiff's claim is based on nothing but rank hypothetical allegations that may or may not ever occur at some undetermined time in the future. Such conclusory allegations fail to establish standing for her to bring this claim.
Accordingly, Count One is dismissed on jurisdictional grounds for lack of standing.
Plaintiff contends that defendants have deprived her of "the right to vote and elect the individual who is to serve in the Village Justice position," insofar as defendants may appoint the first Village Justice, rather than allowing voters to elect an individual to fill the position. (Compl. ¶¶ 110-11.) In support of her claim, plaintiff points to the language of New York Village Law § 3-301(3), which states, in relevant part, that "village justices shall be elective officers." N.Y. Vill. L. § 3-301(3) (West 2010). Plaintiff seeks "temporary, preliminary and permanent injunctive relief. . . prohibit[ing] Defendants from appointing or approving or swearing in any persons to fill the positions of Village Justice and Acting Village Justice until such time as the elective Office of Village Justice is first filled by an individual who is elected by the voters" of Sag Harbor. (Compl. ¶ 114.) She also requests that the Court issue a declaratory judgment that Local Law # 5 is unconstitutional on its face and as applied. (Id. ¶ 116.)
Defendants argue, however, that this claim is not ripe for adjudication and that, in any event, the appointment of a Village Justice is permissible under New York Public Officers Law Section 30(2), which provides that "[w]hen a new or an additional
As a threshold matter, the Court finds that this claim is ripe for adjudication. For claims to be justiciable under Article III, "courts have long recognized that the controversy, as an initial matter, must be ripe." Kittay v. Giuliani, 112 F.Supp.2d 342, 348 (S.D.N.Y.2000) (citing Marchi v. Bd. of Cooperative Educ. Servs., 173 F.3d 469, 478 (2d Cir.1999) and Thomas v. City of N.Y., 143 F.3d 31, 34 (2d Cir.1998)), aff'd 252 F.3d 645 (2d Cir.2001). The Supreme Court has explained that "[r]ipeness is a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Nat'l Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 807-08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (internal quotation marks and citation omitted). Notably, even if a case presents an actual case or controversy, and is thus "constitutionally ripe," it may not be "prudentially ripe" for review. See Simmonds v. Immigration & Naturalization Serv., 326 F.3d 351, 357 (2d Cir.2003). In deciding whether a case is prudentially ripe for review, courts must consider: "(1) whether an issue is fit for judicial decision and (2) whether and to what extent the parties will endure hardship if decision is withheld." Id.
Moreover, in a declaratory judgment action, "[t]he standard for ripeness. . . is that `there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.'" Duane Reade, Inc. v. St. Paul Fire and Marine Ins. Co., 411 F.3d 384, 388 (2d Cir.2005) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)). In other words, an "actual controversy," as referenced in the Declaratory Judgment Act, is defined as one that is "real and substantial . . . admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Olin Corp. v. Consol. Aluminum Corp., 5 F.3d 10, 17 (2d Cir.1993) (internal citation and quotation marks omitted); see also Georgia-Pacific Consumer Prods., LP v. Int'l Paper Co., 566 F.Supp.2d 246, 255 (S.D.N.Y.2008) (stating that "relief should only be granted where it can be `of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts'") (quoting E.R. Squibb & Sons, Inc. v. Lloyd's & Cos., 241 F.3d 154, 177 (2d Cir.2001)); U.S. Underwriters Ins. Co. v. Kum Gang, Inc., 443 F.Supp.2d 348, 352 (E.D.N.Y.2006) ("A court cannot adjudicate conjectural or hypothetical cases or controversies. A controversy cannot be a mere possibility or probability that a person may be adversely affected in the future." (internal citations omitted)). "Whether a real and immediate controversy exists in a particular case is a matter of degree and must be determined on a case-by-case basis." Kidder, Peabody & Co., Inc. v. Maxus Energy Corp., 925 F.2d 556, 562 (2d Cir.1991). "Several courts have acknowledged the difficulty of line-drawing between those cases in which a controversy is of a hypothetical or speculative nature, and those that present issues of `sufficient immediacy and reality' to warrant declaratory relief." M.V.B. Collision, Inc. v. Allstate Ins. Co., No. 07 Civ.
In this case, as noted supra in note 2, the Village of Sag Harbor has appointed a Village Justice to serve until the election scheduled for June 2011. Accordingly, if the Court were to reach the merits of plaintiff's claim, the Court would be adjudicating an "actual controversy" based upon an act that has already occurred, namely, the appointment of a Village Justice. Thus, this claim is ripe for adjudication.
However, even assuming arguendo that plaintiff is correct that the appointment of a Village Justice violates New York State law, the Court nevertheless finds that plaintiff has not alleged a federal constitutional violation for which relief can be granted under § 1983. Plaintiff's claims are based solely upon defendants' purported violation of New York State Village Law Section 3-301(3), which provides that village justices are elected, rather than appointed, officials. Plaintiff argues that "[n]othing stated in [the] New York Village Law authorizes the appointment of both the Village Justice and Acting Justice at the same time in order to start the Sag Harbor Village Justice Court." (Compl. ¶ 103; see also id. ¶ 107-08 ("From the plain language of the New York Village Law it is clear that the office of Village Justice is an elected position and it is not an appointed position. . . . Defendants, however, . . . have now openly threatened to eschew that New York statutory process.. . ."); id. ¶ 112 ("Because New York Village Law does not authorize the mayor to make two simultaneous appointments for the Village Justice and the Village Acting Justice, Defendants should be enjoined from appointing any Village Justice. . . .").) Even if plaintiff is correct in her interpretation of the applicable provisions of New York's Village Law, "[i]t is axiomatic that violations of state law alone are insufficient to state a claim for section 1983 relief." Powers v. Coe, 728 F.2d 97, 105 (2d Cir. 1984) (citing Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980)). The mere fact that a case may involve voting rights or political elections does not change this analysis. See Kasper v. Bd. of Election Comm'rs of the City of Chicago, 814 F.2d 332, 342 (7th Cir.1987) ("The district court has no supervisory powers and no authority to instruct the Board [of Elections] how to follow state law. A violation of state law does not state a claim under § 1983. . . . That this case involves elections does not matter. [The Supreme Court has held] that a deliberate violation of state election laws by state election officials does not transgress against the Constitution." (internal citations omitted)). Plaintiff has alleged no facts to set forth a plausible claim for violation of her due process or equal protection rights, or any other constitutional rights for that matter. Instead, each of plaintiff's allegations in Count Two relate to defendants' alleged violation of state law, and the mere labeling of plaintiff's claims as arising under the Constitution does not transform them into legitimate constitutional claims for purposes of § 1983.
Significantly, plaintiff is not challenging the constitutionality of the state's law regarding the election of Village Justices. To the contrary, she is seeking to ensure that defendants comply with the terms of
Grano v. Barry, 733 F.2d 164, 168-69 (D.C.Cir.1984). This Court agrees with the reasoning of the D.C. Circuit and, accordingly, finds that plaintiff has failed to state a claim for which federal relief can be granted on Count Two.
New York Village Law Section 3-301(2)(a) provides, in pertinent part, that the board of trustees of a village may establish the office of village justice "by resolution or local law, subject to a permissive referendum." To place such a referendum on the ballot for approval by a village's voters, a petition requesting a referendum must be signed and acknowledged by 20% "of such electors in the village, as shown on the register of electors for the previous general village election." N.Y. Vill. L. § 9-902(1) (West 2010). Plaintiff argues that defendants have "deliberately and intentionally engaged in certain conduct to diminish the success of any petition" by failing to maintain accurate voter registers. (Compl. ¶ 124.) In particular, according to the complaint, the Village "has deliberately relied upon an artificially inflated amount of purported `eligible voters,'" thus "depriv[ing] Plaintiff and others from gathering a sufficient amount of names of eligible voters in order to meet the criteria of '20% of the number of names on the register of electors.'" (Id. ¶ 126.)
As with Count One, the Court finds that plaintiff lacks standing to bring this claim. Specifically, plaintiff has not suffered any injury as a result of the allegedly inaccurate voter registers because she does not allege that she made any attempt to collect a sufficient number of signatures to petition for a referendum on the Justice Courts. "As a general matter, to establish standing to challenge an allegedly unconstitutional policy, a plaintiff must submit to the challenged policy." Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1096 (2d Cir. 1997). In response, plaintiff argues in a conclusory fashion that "any such attempt [to petition] is futile and the law does not require futile acts." (Pl.'s Opp. Mem. of Law at 24.) Although it is true that a plaintiff's failure to submit to a challenged policy may be excused for standing purposes where a plaintiff makes a "substantial showing" that submission to the policy would have been futile, Jackson-Bey, 115 F.3d at 1096, Weiss has made no such substantial showing here. Indeed, plaintiff has set forth no specific factual allegations to support her futility argument, and instead has relied solely upon generalized assertions that the voter lists are outdated, a fact which, in and of itself, does not
In any event, even if plaintiff had standing, the Court would still dismiss this Count because plaintiff has failed to state a claim for which relief can be granted. As a threshold matter, "the right to pass legislation through a referendum is a state-created right not guaranteed by the U.S. Constitution." Molinari v. Bloomberg, 564 F.3d 587, 597 (2d Cir.2009). However, should a state choose to confer such a right on its citizens, "it is `obligated to do so in a manner consistent with the Constitution.'" Id. (quoting Meyer v. Grant, 486 U.S. 414, 420, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988)). Thus, the Supreme Court has overturned state laws that placed unconstitutional regulations on speech in the initiative context by, for example, "dictat[ing] who could speak (only volunteer circulators and registered voters) or how to go about speaking (with name badges and subsequent reports)." Id. at 599 (quoting Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1099 (10th Cir.2006) (en banc) and citing Meyer and Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999)). Nonetheless, "Meyer and Buckley do not guarantee a right to legislate by referendum," but instead merely "make clear that the First Amendment protects political speech from undue government interference in the context of referendum petitioning." Id. In other words,
Initiative & Referendum Inst., 450 F.3d at 1099-1100; see also Biddulph v. Mortham, 89 F.3d 1491, 1498 n. 7 (11th Cir.1996) ("[T]he Court [in Meyer] established an explicit distinction between a state's power to regulate the initiative process in general and the power to regulate the exchange of ideas about political changes sought through the process. The Court only addressed the constitutionality of the latter.").
Here, plaintiff is not in any way restricted from engaging in political discourse or other First Amendment activity regarding the creation of the Village Justice Courts. Indeed, plaintiff remains free to advocate her position against the Justice Courts or to file a petition-she merely argues that the likely success of any petition has been "diminish[ed]" by defendants' actions. (Compl. ¶ 124.) However, even if a law or policy "will make it more difficult for plaintiffs to organize voter initiatives and referenda in the future, `the difficulty of the process alone is insufficient to implicate the First Amendment, as long as the communication of ideas associated with the [referendum process] is not affected.'" Molinari, 564 F.3d at 602 (quoting Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir.1997)); see also Wellwood v. Johnson, 172 F.3d 1007, 1009 (8th Cir.1999) (upholding Arkansas law requiring signatures of 38% of the registered voters in a political subdivision to put an initiative on the ballot in local-option elections where the statute "in no way burden[ed] the ability of supporters of local-option elections to make their views heard"); Dobrovolny, 126 F.3d at 1112-13 (state constitutional provision requiring initiative petitions to include signatures of 10% of the voters registered on the day the petition was to be submitted did not violate First Amendment where, even
Furthermore, to the extent plaintiff is merely seeking to compel state officials to comply with the requirements of state laws regarding petitions and referenda,
Plaintiff argues that "[d]efendants' stated customs and policies and practices which they have established for the Sag Harbor Village Justice Court and the Village Justice Office have diminished, compromised, frustrated and thwarted the Village Justices' abilities to perform his or her judicial functions in a professional and ethical manner, thus unconstitutionally subjecting Plaintiff and others to an unconstitutional judicial process and `part time justice.'" (Compl. ¶ 140.) In support of this argument, plaintiff points to, inter alia, a lack of space for the Village Justice to have private chambers (id. ¶ 141), for a secretary or law clerk to sit (id. ¶ 143), or for defense attorneys to meet with their clients (id. ¶ 144); a lack of funds allocated for interpreters (id. ¶ 150-52); the absence of a law library or contract plans with Westlaw or LEXIS (id. ¶ 155); and the lack of a budget for metal detector security machines (id. ¶ 164-65).
It is abundantly clear that plaintiff lacks standing to bring this claim. As with Count One, the allegations in this Count are based purely on conjecture and conclusory allegations with no factual foundation. Even if plaintiff were arrested and tried before a Village Justice—which she has not been—it is difficult to see how plaintiff could be injured by the purported flaws that she points out in her complaint. For example, the lack of foreign language interpreters would have no impact on plaintiff, who is representing herself in this litigation and clearly is fluent in English.
Accordingly, Count Four of plaintiff's complaint is dismissed on jurisdictional grounds for lack of standing.
As an initial matter, the Court notes that it is not entirely clear what claims plaintiff is attempting to assert in this count. She appears to have grouped together several different arguments related to the housing of the Village Justice Court in the Sag Harbor Municipal Building, including claims under the National Housing Preservation Act ("NHPA"), the National Environmental Protection Act ("NEPA"), and the New York State Environmental Quality Review Act ("SEQRA"). Defendants have moved to dismiss this count on the grounds that plaintiff's claims are not ripe for adjudication and that, in any event, defendants have complied with the relevant environmental regulations.
Turning first to defendants' ripeness argument, plaintiff was unable to articulate at oral argument why certain of her claims in Count Five were ripe for adjudication. For example, plaintiff devotes several paragraphs of her complaint to concerns that using the Municipal Building for the Village Court's operations may result in excessive toilet flushing that could lead to the flooding of untreated sewage into the neighborhood around the Municipal Building. (Compl. ¶¶ 184-87.) As with many of plaintiff's other arguments, these concerns are based upon nothing but pure speculation, and none of the potential injuries highlighted by plaintiff have yet occurred. Accordingly, the Court finds that any claims related to toilet overflow and harm to the surrounding community are not ripe for adjudication.
To the extent that plaintiff is arguing that defendants have failed to follow the proper environmental review procedures before beginning operations of the Justice Courts in the Municipal Building, the Court finds that plaintiff has failed to state a claim for which federal relief can be granted. First, any claims under the NHPA must fail because plaintiff has not alleged the involvement of any federal agencies in the decision to move the Justice Court into the Municipal Building. It is well-settled in the Second Circuit that "violations of the NHPA can only be committed by a federal agency." W. Mohegan Tribe & Nation of N.Y. v. New York, 246 F.3d 230, 232 (2d Cir.2001) (affirming dismissal of NHPA claim brought against the State of New York) (citing 16 U.S.C. § 470f (2000) and Vieux Carre Prop. Owners v. Brown, 875 F.2d 453, 458 (5th Cir. 1989) ("By its terms, only a federal agency can violate section 470f.")); cf. Moody Hill Farms Ltd. P'ship v. United States Dep't of the Interior, Nat'l Parks Service, 205 F.3d 554, 562 (2d Cir.1999) ("[N]ational listing on its own does not impose any burdens on plaintiffs' use of their property. National listing constrains only the ability of departments of the federal government to take action affecting a listed property without first considering the effect of that action on the property."); cf. W. Hartford Initiative to Save Historic Prop. v. Town of W. Hartford, No. 06-cv-739 (RNC), 2006 WL 2401441, at *6 (D.Conn. Aug. 18, 2006) ("Because the NHPA does not apply to construction projects affecting historic properties in the absence of federal involvement, preservationists must rely on state and local laws to protect properties from unreasonable destruction."). Here, based on the allegations in the complaint, it is undisputed that the decision to create
Similarly, plaintiff's claims under the NEPA must also be dismissed due to lack of federal involvement. Like the NHPA, the NEPA applies only to federal agencies undertaking "major federal action." So. Bronx Coal. for Clean Air, Inc. v. Conroy, 20 F.Supp.2d 565, 570 (S.D.N.Y.1998) ("`Congress did not intend NEPA to apply to state, local, or private actions, hence, the statute speaks only to `federal agencies' and requires impact statements only as to `major federal actions.'") (quoting Atlanta Coal. on the Transp. Crisis v. Atlanta Reg'l Comm'n, 599 F.2d 1333, 1344 (5th Cir.1979)); accord Bus. & Residents Alliance of E. Harlem v. Martinez, No. 03-cv-5363 (JFK), 2004 WL 1335903, at *4 (S.D.N.Y. June 14, 2004) (discussing South Bronx Coalition and noting "[i]f the federal government lacks discretion over substantial portions of a project, especially where state and local agencies have exclusive control of the content and implementation of the plan, the project is not `federal' and failure to adhere to the requirements of the NEPA will not be grounds for enjoining the project"). Thus, given the complete lack of any allegation of federal agency involvement in any aspect of the decision to create the Village Justice Court and house it in the Municipal Building, plaintiff has failed to state a claim for relief under the NEPA.
Furthermore, plaintiff also argues that defendants did not conduct a proper environmental review before deciding to operate the Justice Court out of the Municipal Building and, thus, violated the requirements of SEQRA. This claim, however, is a purely state-law claim and, as such, the Court declines in its discretion to exercise supplemental jurisdiction over it, given the absence of any federal claims that survive a motion to dismiss. See Gebman v. New York, No. 07-cv-1226 (GLS-DRH), 2008 WL 2433693, at *3 (N.D.N.Y. June 12, 2008) ("Although it is not clear whether [plaintiff] intended to bring his SEQRA claim under Article 78 of the New York Civil Practice Law and Rules ("CPLR"), it is clear that he should have. Therefore, the court construes the SEQRA claim as having been brought pursuant to Article 78. As such, it is not properly before this court. . . . Accordingly, the court declines to exercise supplemental jurisdiction over [plaintiff's] SEQRA claim, and such claim is therefore dismissed." (internal citations omitted)); Brooklyn Bridge Park Coal. v. Port Auth. of N.Y. & N.J., 951 F.Supp. 383, 395 (E.D.N.Y.1997) ("Having dismissed all of plaintiff's federal
In a one-sentence reference, at the end of her opposition papers, plaintiff requests leave to amend or re-plead the claims in her Complaint in the event the Court finds any deficiencies. Under Rule 15(a) of the Federal Rules of Civil Procedure, "leave [to amend] shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). However, even under this liberal standard, it appears that any attempt to re-plead in this case would be futile based upon the Court's review of the Complaint and plaintiff's opposition papers. As discussed in detail supra, it is clear from the complaint (as well as plaintiff's submissions in opposition to the motion) that plaintiff lacks standing to assert a number of her federal claims. The Court is unaware of, nor has plaintiff identified, any additional allegations that plaintiff could add to her complaint to establish standing. Moreover, the remaining claims are purely state-law claims for which no plausible Section 1983 or other federal claim can exist given the allegations in this case, and thus such defects would not be cured by re-pleading. However, in an abundance of caution, the Court will give plaintiff an opportunity to be heard on the issue of leave to re-plead so that, before the Court decides whether leave to re-plead is warranted, plaintiff can explain what additional allegations she would be seeking to add to overcome these defects and why such additional allegations would not be futile. Thus, the Court will conduct a conference to address plaintiff's request to re-plead.
For the foregoing reasons, the Court grants defendants' motion to dismiss the complaint in its entirety as it relates to plaintiff's federal claims. Moreover, to the extent that plaintiff's complaint seeks to assert state-law claims, the Court declines in its discretion to exercise supplemental jurisdiction over such claims, given that none of the federal claims survive a motion to dismiss. Thus, the Court also dismisses plaintiff's state-law claims (without prejudice to re-filing such claims in state court).
SO ORDERED.
42 U.S.C. § 1983.
