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Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500


Docket Number(s): 08-43234~ Caption fuse short title]

Motion for: Permission to fib enala corrections to Awellant Brief Loeber et al. v . Spargo et al.
Set forth below precise, complete statement of relief sought:

Errata corrections to Appellant Brief filed January 4.2010 including

conformance to 14 point print size with certiiicatbn d conformance under FPApR; and

request for a Appeal panel who am God-fearingJudges rather than Qnqstic and or non-believers

to hear the appeal case S t ~ n vk USPS et al. 08-3242- on the same day as they are related.
Plaintiff Defendant P 0
' Appellant/Petitioner AppelleetRespondent cn
MOVING A m O W Y : Christopher-Earl: Stnmk in esse OPPOSING ATTORNEY: AARON M. BALDWIN, Assistant Attorney General. of C o d
[name of attorney, with firm,address, phone number and email]
C h M e r - E a r l : Sbunk in esse The Ca~ltol
593 Vanderbilt Avenue W281 Albany. New York 12224-0341 1
Brooklyn New York 11238 Telephone: (518) 474-2913 Fax: (518) 473-1572 .--

(845) 901-6767 ernail: chris@stmnk.ws Ernail: Aaron.BaldwlnBoag.state.ny.us

Court-Judge/Agency appealed from: USDC of the Northern District of New York Decision and Order to Dismiss of Judge Lawrence E. Kahn In NDNY 04-12~-1193.

Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND
Has movan otified opposing counsel (required by Local Rule 27.1): Has request for relief been made below?
$yes 0
NO (explain): Has this relief been previously sought in this Court? Yes
Requested return date and explanation of emergency:
Opposing counsel's position on motion:
Unopposed ~ ~ p o s e d w ~ oKnow n ' t
Does opposing counsel intend eolt! irkponse:
Yes NO WD0n.t Know

Is oral argument on motion requested? U Y e s U N o (requests for oral argument will not necessarily be granted)

Has argument date of appeal been set? ayes No If yes, enter date:

Date:& uuMy 17,Lo'o Has service been eflected? No [Attach proof of service]


Date: By:

Form T-1080

I, Christopher-Earl: Strunk in esse, state under penalty of perjury with 28

USC §1746:

1. Declarant is the Appellant/Petitioner herein Appeal Case

Loeber et al. v. Spargo et al. 08-4323-cv, and with place for service at 593

Vanderbilt Avenue #281 Brooklyn, New York 11238.

2. Declarant files this declaration in support of the T1080 motion

request to file an errata correction appellant brief for 08-4323-cv, and that it

to be heard when fully briefed the same day before the same panel as in 08-

3242-cv .

3. That the Appellant Brief filed on January 4, 2010 was formatted

in the wrong print size and without the inclusion of the US DOJ that filed a

notice of appearance herein.

4. That the Hearing date on submission for the 08-3242-cv Appeal

Case is scheduled for January 15, 2010 and hereby is requested to be

coordinated for a different date at the Court’s choosing, in that Declarant is

one of three Appellants in this appeal case Loeber et al. v. Spargo et al. 08-


5. Declarant has spoken with Appellants, H. William: Van-Allen

in esse, and John-Joseph: Forjone in esse who are all members of THE AD


LEGISLATIVE REDISTRICTING, an un-incorporated membership

association of Plaintiffs, and neither oppose this motion request to have

Appellant Brief of 08-3242-cv heard on the same day before the same panel

as in 08-4323-cv.

6. Those as a matter of economy of Court time and consistency of

the Appeal decision, as both are directly related, must be heard together; as

both would be the subject of a consolidation motion for Certiorari Writ from

the U.S. Supreme Court were it necessary.

7. That as a ninth amendment injury issue before this Court also,

the nature of the matter before this Court requires any Judge to absolutely

believe in God, in that the Preamble to the New York Constitution states


“We The People of the State of New York, grateful to Almighty God
for our Freedom, in order to secure its blessings, DO ESTABLISH

8. That Declarant’s inalienable rights are given by Almighty God

not a man, men or entities, and contends that any Gnostic un-believer must

recuse him or herself in that such Judge by default accepts a usurper

temporal power in provision of rights, whose one world temporal and

spiritual leader over all men contrary to requirements of the Declaration of

Independence of July 4, 1776 thereafter incorporated into each Constitution

of the founding colonies including the April 20, 1777 New York

Constitution, that thereafter broke with King George 111.

9. Declarant as a matter of epistemological proof and logic, knows

as to his 9'h amendment right that there is no possible way Appellant(s) may

obtain a fair hearing without a Judge(@dedicated to Almighty Godfor our

fieedom and the Original Constitution, and which is diametrically,opposed

to the Jesuit Doctrine of "SocialJustice that has permeated the Court


system and governance since 1868 and is synonymous with the

unconstitutional heresy of the "theLiving Constitution".

Respectfilly submitted and certified to be true under penalty of


Dated: January 8,2010

Brooklyn, New York

593 Vanderbilt Avenue - #28 1

Brooklyn., New York 11238
(845) 90 1-6767 .
Email: chris@stnmk.ws
U.S.Court of Appeals for the Second Circuit in re Appeal Case 08-4323-cv

On January 1 1,2010. I, Christopher Earl Strunk, under penalty of pejury with 28 USC fj1746

caused the service of seven complete sets of the errata corrections to Appellant Brief endorsed

January 5,2010, and one copy of the Appendix to the DOJ who made an appearance; and with

seven sets of the TI080 Motion with supporting declaration to file the errata brief signed January 8,

20 10 pursuant to the Schedule upon counsels to Appellees by placing each complete package in a

properly addressed envelope with proper postage for delivery by the United States Postal Service as


AARON M. BALDWIN Kimberly A. Galvin, Esq.

Assistant Attorney General of New York New York State Board of Elections
The Capitol 40 Steuben St.
Albany, New York 12224-0341 Albany ,NY , 12207


Corporation Counsel Michael Cardozo United States Attorney Assistant
NYC Law Department Attorney General
100 Church Street Civil Rights Division
New York, NY 10007 U.S. Department of Justice
Room 7254--NWB
JAMES E. LONG, ESQ. 950 Pennsylvania Avenue, W
668 Central Avenue washingtin, D.C. 20530 U ) 0
Albany, New York 12206 0
D,cs zz
Peter A. Norling Esq. , /

JAMES E. KONSTANTY, ESQ. U.S. Attorney's Office, r5c.';

Konstanty Law Office Eastern District of New Y o r k -,,
252 Main Street I Piempont Plaza, Att: Ms.
Brooklyn ,NY , 1 1201
- o
Oneonta, NY 13820
P r Q \

I do declare and certify under penalty of perjury:

Dated: January 1 I, 20 10
Brooklyn, New York

593 ~anderbiltAvenue - #28 1

.Brooklyn., New York 1 1235
(845) 90 1-6767 Email: chrisG$strunk.ws
United States Court Of Appeals
For The Second Circuit
Ronald G. Loeber, et al.


H. William Van Allen, John-Joseph Fodone, Christopher Earl S p n k ,

m -


Thomas J. Spargo, et al.

Defendants - Appellees

On Appeal fiom the United States District Court for the Northern District of New York Decision .
and Orders of Lawrence E. Kahn, District Court Judge in Case No. 04 Civ. 1193

(Errata Corrections)

THE AD HOC NYS CITIZENS FOR Christopher-Earl: Strunk in esse

CONSTITUTIONAL LEGISLATIVE self-represented wlo being an attorney
REDISTRICTING . 593 Vanderbilt Avenue -#28 1
35 1 North Road Brooklyn, New York 11238
Hurley, NY 12443 (845).90 1-6767 email: chris@stru&.ws

H. William: Van-Allen in esse

351 North Road Hurley New York 12443
(845) 389-4366

John-Joseph: Forjone in esse

141 Harris Avenue
Lake Luzerne, New York 12846
(585) 721-7673

Christopher-Earl: Strunk in esse

593 Vanderbilt Avenue – 281,
Brooklyn, New York 11238
(845) 901-6767


Ronald G. Loeber Gabriel Razzano

2130 Berne Altamont Road 135 Gordon Place
Altamont, NY 12009 Freeport, NY 11520

William E. Bombard Edward M. Person, Jr.

P.O. Box 882 392 Saldane Avenue
Glens Falls, NY 12801 North Babylon, NY 11703

William A. Gage Burr V. Deitz

10 Greenfield Lane 444 Whitehall Road
Hampton, NY 12837 Albany, NY 12208

Fairlene G. Rabenda Roy-Pierre Detiege-Cormier

8 Claudia Lane 25 Hattie Jones Circle
Poughkeepsie, NY 12603 Brooklyn, NY 11213

Ronald E. Sacoff The Ad Hoc NYS Citizens for

84 Boylan Street Constitutional Legislative
Staten Island, NY 10312 Redistricting
351 North Road
Hurley, NY 12443


Attorney General of the State of New York
Attorney for Defendants Thomas J. Spargo,
Joseph L. Bruno, NYS Senate, Sheldon Silver,
NYS Assembly, George E. Pataki, Randy A. Daniels and Eliot Spitzer
The Capitol
Albany, New York 12224-0341
Assistant Attorney General, of Counsel
Telephone: (518) 474-2913
Fax: (518) 473-1572 (Not for service of papers)
Email: Aaron.Baldwin@oag.state.ny.us

Also Representing:
Peter Kosinski, individually and his official capacity at the NASS, Eric Adams,
James S. Alesi, John J. Bonacic, Neil D. Breslin, NYS Senator, Martin Connor,
NYS Senator, John DeFrancisco, NYS Senator, Ruben Diaz, Sr., NYS Senator,
Martin Malave Dilan, NYS Senator, Thomas K. Duane, NYS Senator, Hugh T.
Farley, NYS Senator, John J. Flanagan, NYS Senator, Charles J. Fuschillo, Jr.,
NYS Senator, Martin J. Golden, NYS Senator, Efrain Gonzalez, NYS Senator,
Joseph A. Griffo, NYS Senator, Kemp Hannon, NYS Senator, Ruth Hassell-
Thompson, NYS Senator, Shirley L. Huntley, NYS Senator, Craig M. Johnson,
NYS Senator, Owen H. Johnson, NYS Senator, Jeffrey D. Klein, NYS Senator,
Liz Krueger, NYS Senator, Carl Kruger, NYS Senator, Andrew J. Lanza, NYS
Senator, William J. Larkin Jr., NYS Senator, Kenneth P. LaValle, NYS Senator,
Vincent L. Leibell III, NYS Senator, Thomas W. Libous, NYS Senator,
Elizabeth O`C Little, NYS Senator, Serphin R. Maltese, NYS Senator, Carl L.
Marcellino, NYS Senator, George D. Maziarz, NYS Senator, Velmanette
Montgomery, NYS Senator, Thomas P. Morahan, NYS Senator, Michael
Nozzolio, NYS Senator, George Onorato, NYS Senator, Suzi Oppenheimer,
NYS Senator, Frank Padavan, NYS Senator, Kevin S. Parker, NYS Senator,
Bill Perkins, NYS Senator, Mary Lou Rath, NYS Senator, Joseph E. Robach,
NYS Senator, John D. Sabini, NYS Senator, Stephen M. Saland, NYS Senator,
John L. Sampson, NYS Senator, Diane J. Savino, NYS Senator, Eric T.
Schneiderman, NYS Senator, Jose M. Serrano, NYS Senator, James L. Seward,
NYS Senator, Dean G. Skelos, NYS Senator, Malcolm A. Smith, NYS Senator,
William T. Stachowski, NYS Senator, Toby Ann Stavisky, NYS Senator, Andrea

Stewart-Cousins, NYS Senator, Antoine M. Thompson, NYS Senator, Ceasar
Trunzo, NYS Senator, David J. Velesky, NYS Senator, Dale M. Volker, NYS
Senator, George H. Winner Jr., NYS Senator, Catharine M. Young, NYS
Senator, Peter J. Abbate, Jr., NYS Assemblyman, Marc S. Alessi, NYS
Assemblyman, Tom Alfano, NYS Assemblyman, George Amedore, NYS
Assemblyman, Carmen E. Arroyo, NYS Assemblywoman, Darrel J. Aubertine,
NYS Assemblyman, Jeffrion L. Aubry, NYS Assemblyman, Jim Bacalles, NYS
Assemblyman, Greg Ball, NYS Assemblyman, William A. Barclay, NYS
Assemblyman, Bob Barra, NYS Assemblyman, Michael Benedetto, NYS
Assemblyman, Michael Benjamin, NYS Assemblyman, Jonathan L. Bing, NYS
Assemblyman, William F. Boyland Jr., NYS Assemblyman, Philip Boyle, NYS
Assemblyman, Adam Bradley, NYS Assemblyman, James F. Brennan, NYS
Assemblyman, Richard L. Brodsky, NYS Assemblyman, Alec Brook-Krasny,
NYS Assemblyman, Daniel J. Burling, NYS Assemblyman, Marc W. Butler, NYS
Assemblyman, Kevin A. Cahill, NYS Assemblyman, Nancy Calhoun, NYS
Assemblywoman, Karim Camara, NYS Assemblyman, Ron Canestrari, NYS
Assemblyman, Ann Margaret Carrozza, NYS Assemblywoman, Joan K.
Christensen, NYS Assemblywoman, Barbara M. Clark, NYS Assemblywoman,
Mike Cole, NYS Assemblyman, William Colton, NYS Assemblyman, James D.
Conte, NYS Assemblyman, Vivian E. Cook, NYS Assemblywoman, Clifford W.
Crouch, NYS Assemblyman, Michael Cusick, NYS Assemblyman, Steven
Cymbrowitz, NYS Assemblyman, Francine DelMonte, NYS Assemblywoman,
RoAnn M. Destito, NYS Assemblywoman, Luis M. Diaz, NYS Assemblyman,
Ruben Diaz Jr., NYS Assemblyman, Jeffrey Dinowitz, NYS Assemblyman,
Janet L. Duprey, NYS Assemblywoman, Patricia A. Eddington, NYS
Assemblywoman, Steve Englebright, NYS Assemblyman, Joseph A. Errigo, NYS
Assemblyman, Adriano Espaillat, NYS Assemblyman, Herman D. Farrell Jr.,
NYS Assemblyman, Ginny Fields, NYS Assemblywoman, Gary D. Finch, NYS
Assemblyman, Michael J. Fitzpatrick, NYS Assemblyman, George S. Latimer,
NYS Assemblyman, Charles D. Lavine, NYS Assemblyman, Joseph R. Lentol,
NYS Assemblyman, Barbara Lifton, NYS Assemblywoman, Peter D. Lopez,
NYS Assemblyman, Vito J. Lopez, NYS Assemblyman, Donna A. Lupardo, NYS
Assemblywoman, William Magee, NYS Assemblyman, William B. Magnarelli,
NYS Assemblyman, Alan Maisel, NYS Assemblyman, Margaret M. Markey,
NYS Assemblywoman, Nettie Mayersohn, NYS Assemblywoman, Roy
McDonald, NYS Assemblyman, David McDonough, NYS Assemblyman, John
J. McEneny, NYS Assemblyman, Tom McKevitt, NYS Assemblyman, Joel M.
Miller, NYS Assemblyman, Joan L. Millman, NYS Assemblywoman, Marcus
Molinaro, NYS Assemblyman, Joseph D. Morelle, NYS Assemblyman,
Catherine Nolan, NYS Assemblyman, Daniel J. O`Donnell, NYS Assemblyman,

Thomas F. O`Mara, NYS Assemblyman, Bob Oaks, NYS Assemblyman, Felix
Ortiz, NYS Assemblyman, William L. Parment, NYS Assemblyman, Amy
Paulin, NYS Assemblywoman, Crystal D. Peoples, NYS Assemblywoman, Jose
R. Peralta, NYS Assemblyman, N. Nick Perry, NYS Assemblyman, Audrey I
Pheffer, NYS Assemblywoman, Adam Clayton Powell IV, NYS Assemblyman,
J. Gary Pretlow, NYS Assemblyman, Jack Quinn, NYS Assemblyman, Annie
Rabbitt, NYS Assemblywoman, Andrew P. Raia, NYS Assemblyman, Phil
Ramos, NYS Assemblyman, Bill Reilich, NYS Assemblyman, Bob Reilly, NYS
Assemblyman, Jose Rivera, NYS Assemblyman, Dennis H. Gabryszak, NYS
Assemblyman, Sandy Galef, NYS Assemblywoman, David F. Gantt, NYS
Assemblyman, Joe Giglio, NYS Assemblyman, Deborah J. Glick, NYS
Assemblywoman, Diane Gordon, NYS Assemblywoman, Tim Gordon, NYS
Assemblyman, Richard N. Gottfried, NYS Assemblyman, Aurelia Greene, NYS
Assemblyman, Aileen M. Gunther, NYS Assemblywoman, Stephen Hawley,
NYS Assemblyman, Jim Hayes, NYS Assemblyman, Carl E. Heastie, NYS
Assemblyman, Andrew Hevesi, NYS Assemblyman, Dov Hikind, NYS
Assemblyman, Earlene Hooper, NYS Assemblywoman, Sam Hoyt, NYS
Assemblyman, Janele Hyer-Spencer, NYS Assemblywoman, Rhonda Jacobs,
NYS Assemblywoman, Ellen Jaffee, NYS Assemblywoman, Hakeem Jeffries,
NYS Assemblyman, Susan V. John, NYS Assemblywoman, Brian P. Kavanagh,
NYS Assemblyman, Micah Z. Kellner, NYS Assemblyman, Tom Kirwan, NYS
Assemblyman, Brian M. Kolb, NYS Assemblyman, David Koon, NYS
Assemblyman, Ivan C. Lafayette, NYS Assemblyman, Rory I. Lancman, NYS
Assemblywoman, Naomi Rivera, NYS Assemblywoman, Peter M. Rivera, NYS
Assemblyman, Annette Robinson, NYS Assemblywoman, Linda B. Rosenthal,
NYS Assemblywoman, Joseph Saladino, NYS Assemblyman, Teresa R.
Sayward, NYS Assemblywoman, William Scarborough, NYS Assemblyman,
Michelle Schimel, NYS Assemblywoman, Robin Schimminger, NYS
Assemblywoman, Mark J.F. Schroeder, NYS Assemblyman, Dede Scozzafava,
NYS Assemblywoman, Anthony S. Seminerio, NYS Assemblyman, Sheldon
Silver, NYS Assemblyman, Mike Spano, NYS Assemblyman, Al Stirpe, NYS
Assemblyman, Robert K. Sweeney, NYS Assemblyman, James Tedisco, NYS
Assemblyman, Fred W. Thiele Jr., NYS Assemblyman, Matthew Titone, NYS
Assemblyman, Michele R. Titus, NYS Assemblywoman, Lou Tobacco, NYS
Assemblyman, Darryl C. Towns, NYS Assemblyman, David R. Townsend, NYS
Assemblyman, Rob Walker, NYS Assemblyman, Helene E. Weinstein, NYS
Assemblywoman, Harvey Weisenberg, NYS
Assemblyman, Mark Weprin, NYS Assemblyman, Keith L.T. Wright, NYS
Assemblyman, Ellen Young, NYS Assemblyman, Kenneth Zebrowski, NYS
Assemblyman, Michael Gianaris, NYS Assemblyman, DOE.

Special Counsel Attorney for JAMES E. LONG, ESQ.
Defendants New York State Board of Bar Roll No. 506898
Elections and Peter Kosinski 668 Central Avenue
40 Steuben Street, Albany, New York 12206
Albany, NY 12207 (518) 458-2444
(518) 474-6236
Representing the NATIONAL
Also representing by authority: ASSOCIATION OF SECRETARIES
every Municipal Board of Elections, OF STATE, "NASS", Leslie
along with every Corporation Counsel Reynolds, Executive Director for the
of every Municipality with a Board of Executive Committee,
JAMES E. KONSTANTY, ESQ. United States Attorney Assistant
Konstanty Law Office Attorney General
252 Main Street Civil Rights Division
Oneonta, NY 13820 U.S. Department of Justice
(607) 432-2245 Room 7254--NWB
For the Otsego County Board of 950 Pennsylvania Avenue, NW
Elections, Washington, D.C. 20530
(800) 253-3931
Corporation Counsel of the City of
New York Attorney for City
Defendants City of New York and
Michael Bloomberg
100 Church Street
New York, New York 10007
(212) 780-0849


This Court has jurisdiction because the final related decision and orders from the

United States District Court for the Northern District of New York by Lawrence E.

Kahn, District Court Judge No. 04 Civ. 1193 are appealable per 28 U.S.C. § 1291.


TABLE OF AUTHORITIES................................................……………………..vii
INTRODUCTION………………………………..……………………………..… 1
STATEMENT OF THE CASE .............................................……………………...2
STATEMENT OF FACTS....................................................…..………………......3
QUESTIONS PRESENTED in that Court erred or failed ……..………………...10
ISSUE 1: answer the interrogatories posed in the Appellant’s letter …………….10
ISSUE 2: as to Rule 12 motion, in re ‘plausibility standard………………………11
ISSUE 3: Plaintiff’s request challenging constitutionality of apportionment........12
ISSUE 4: a single judge may dismiss a claim if the Constitutional claim……..…12
ISSUE 5: assumption that New York City is not a single home-rule territory…...13
ISSUE 6: that Article 3, Section 4 entire section was declared unconstitutional…18
ISSUE 7: Amended Complaint is a discernable reapportionment claim………….18
ISSUE 8: constitutional question is not insubstantial with prior decisions…….…19
ISSUE 9: use of Bailey v. Patterson, 369 U.S. at 33, in re a three-judge panel…..19
ISSUE 10: redistricting plan challenge by Plaintiffs has not withstood scrutiny....19
ISSUE 11: Order Section B. Analysis of claims in the Amended Complaint…….20
ISSUE 12: ORDER in re 2nd cause of action and the 6th cause of action………...20
ISSUE 13: 7th cause of action gerrymandering claim re 2002 New York plan…..23
ISSUE 14: liberal construction of equal protection / substantive due process…...23
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . …………………..23
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . …………………………31
APPENDIX with Index 8 pages and exhibits A-1 through A-217.



Federal Authorities:

Luther v. Borden, 48 U.S. (7 How.) 1, 43 (1849)………….……………….…27-29

Baker v. Carr, 369 U.S. 186 (1962) …………………………………….…18,28,29
WMCA, Inc. v. Lomenzo, 377 U.S. 633 (June 15, 1962)…………4,5,9,18,19,22,23
Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)……………………………..11
Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715 (1962)……………………..12
Bailey v. Patterson, 369 U.S. 31, 33 (1962)…………………………………..12,19
Goosby v. Osser, 409 U.S. 512, 518 (1973)………………………………………19
Phillips v. Girdich, 408 F.3d 124, 127-28 (2d Cir. 2005)………………………...20
Bethlehem Steel Co. V. NYS Labor Relations Bd., 330 U.S. 767 (1947) ……...…26
City of New York v. USA SDNY Case 96-cv-7758 (JGK), USCA 2nd Cir 97-6162…
Strunk v. US House et.al. EDNY case 00-7717 (JBW), USCA 2nd Cirt 01-6021…..
Rodriguez et.al. v. Pataki et.al., SDNY 02 cv 618 (28 USC 2284)…..…5,19,22,28
Barnett et.al. v. City of Chicago, et al., 97-2793 USCA 7th Ct. 141 F.3d 699 (1998)
Hines v. Davidowitz, 312 U.S. 52 (1940) ………………………….…………….26
Burns v. Richardson, 384 U.S. 73 (1966)…………………………………………
Davis v. Bandemer 478 U.S. 109 (1986)…………………………………………
Smiley v. Holm, 285 U.S. 355 (1932)……………………………………………..
Koenig v. Flynn, 285 U.S. 375 (1932)…………………………………………….
Reynolds v. Sims, 377 U.S. 533 (1964)…………………………………….14,18,23
Campaign for Fiscal Equity, Inc., et. al. v. NYS, et al.,NYS CA 74 (June 26, 2003)
Storer v Brown, 415 US 724 (1974)………………………………………………
Smith v Allwright, 321 U.S. 649 (1946)………………………………………….
Schultz v. Williams, 44 F.3d 48, 61 n.13 (2d Cir. 1994)………………………….
Diaz v. Silver, 978 F. Supp. 96 (EDNY per curiam), affirmed 522 US 801 (1997)
Shaw v. Hunt, 517 U.S. 899 (1996)("Shaw II"): voting civil rights redistricting
Cromartie v. Hunt, 118 S. Ct. 1510……………………………………………….
Adams v. Clinton, DCDC CV. No 98-1665………………………………………
Alexander v. Daley, DCDC Civ. No. 98-2187……………………………………
Shaw v. Reno, 509 U.S. 630, 652 (1993) ("Shaw I"): voting in re redistricting…..
PRLDEF v. Gantt et.al. EDNY 92 cv 1521 / 92 cv 1776 minority reapportionment.
Dept. of Commerce v. Montana, 503 U.S. 442 (1992): Executive/Congress power
Franklin v. Massachusetts, 505 U.S. 788 (1992): “Usual Residence” ……………
Ridge v. Verity, 715 Fed. Sup. 1308 (W.D.Pa. 1989)……………………………..

Eu v. San Francisco Democratic Comm., 489 U.S. 214 (1989)……………………
Karcher v. Daggett, 462 U.S. 725 (1983): State /CDs equal eligible voters……...26
United Jewish Organizations of Williamsburgh Inc. v. Carey, 430 U.S. 144 (1977)
American Party of Texas v. White, 415 U.S. 767(1974)………………………….27
Roserio v. Rockefeller, 410 U.S. 752 (1973)……………………………………... 5
Rockefeller v. Orans, 382 U.S. 10 (October 11, 1965)……………………………4
Wolpoff et.al. v. Mario M. Cuomo et.al., 80 N.Y.2d 70, 600 N.E.2d 191,
587 N.Y.S.2d 560 (June 30, 1992)…………………………………………………4
Gray v. Sanders, 372 US 368 (1969)……………………………………………..16
Person v. The NYS BOE SDNY 06-cv-6365………………………………………8
Williams v. Rhodes, 393 U.S. 23 (1968)…………………………………………


Article I Section 2 – Electors qualification numerous branch of state legislature

Article I Section 8 clause 4 – Rule of Naturalization
Article I Section 4 – State control over suffrage respecting time place and manner
Article I Section 9– …………………………………………………
Article I Section 10 – Powers denied states and or coordinated with Congress…….
Article II Section 1 – State legislature plenary power of election of chief magistrate
Article III Section 2: Judicial oath of duties to State and Federal Law………
Article IV Section 2-1: Citizens of each State enjoy equal privileges & immunities
Article IV Section 3: States and territories formed within State………………
Article IV Section 4: Guarantee of Republican form of government……….…..27
First Amendment: right to assemble / petition government to redress………..5,8,20
Fifth Amendment: no deprivation w/o due process of law…………………….…20
9th Amendment: certain rights shall not deny/disparage……………………...3,8.20
10th Amendment: Powers not granted Federal nor prohibited reserved by…..3,8,20
14th Amendment: Citizen due process and equal protection; ……….….3,4,8,20,29


The Original New York State Constitution of April 20, 1777…………..……….3,5
The amended New York State Constitution
Article II Suffrage Section 1 thru 9 ………………………………………..
Article III Section 1 thru 17…..…………………….…………..12,18,20,22
Article IX – Local Government …………………………………….…………24,32

N.Y. Elec. Law § 3-100 (State BOE responsibility and duty) …………………
N.Y. Elec. Law § 4-100 (creation of election districts)..............................……..

28 U.S.C. § 1291................................................................………………………..vi
1965 Voting Rights Act Section 5 review (VRA)…………………..6,8,23,25,27,29
Help America Vote Act (“HAVA”) 42 U.S.C. § 1973gg...................................20,23
28 U.S.C. § 2284………………………………………………………….…1,12,30
42 U.S.C. §§1983 and 1985 (state action) ……………….…………………...1,2,29
28 USC §144 in re 28 USC §455……………………………………………...10,30

2nd Circuit Rule §.27……..……….........................................………………….vi,x
Fed. R. App. P. 34.........................................................................................……x
F.R.C.P. 12(b)(6) and 12(c), as well as F.R.C.P. 8(a)……………………………

Rodriquez v Pataki - SDNY 02 cv 618 (28 USC 2284)
Arbor Hill et. al. v. Albany Cty et.al. NDNY 03-cv-502 (NAM) / 2nd Cir 04-9132..1
Lopez Torres et al v. New York State BOE et al EDNY 04-cv-1129 (JG)…………1
Forjone et al. v. California et al. in NDNY 06-cv-1002 (LEK)…………………...1
Strunk v USPS et al EDNY 08-cv-1744 / appeal 2nd Circuit 08-3242-cv….1,2,6,8,9
Strunk v US DOC Bureau of Census et al DCD 09-cv-1295…………………...1,30



This statement is made pursuant to Federal Rule of Appellate Procedure 26.1.

Appellant Christopher-Earl Strunk is an individual and not a corporation.


Appellants request oral argument because such argument would significantly assist

this Court in its decision-making process as provided by Rule 34 of the Federal

Rules of Appellate Procedure and Rule 34 of the Rules of this Court, along with

Local Rule § .27.

I, Christopher-Earl: Strunk in esse, state under penalty of perjury with 28 USC
§1746 that:

Appellant Christopher-Earl: Strunk in esse (See A-9) is self represented without

being an attorney along with Appellants, H. William: Van-Allen in esse (See A-13)

and John-Joseph: Forjone in esse (See A-2) who are all members of THE AD HOC


REDISTRICTING, an un-incorporated membership association of Plaintiffs.

Appellants designate Declarant the spokesman herein because Declarant has the

longest direct experience in this matter as either an Intervener-Petitioner,

Intervener-Plaintiff, Petitioner-Defendant, and or Plaintiff in related cases:

Rodriquez v Pataki - SDNY 02 cv 618, Arbor Hill et. al. v. Albany County et.al.

NDNY 03-cv-502 (NAM) and at 2nd Cir 04-9132, Lopez Torres et al v. New York

State Board of Elections et al EDNY 04-cv-1129 (JG), Forjone et al. v. California

et al. in NDNY 06-cv-1002 (LEK), Strunk v USPS et al EDNY 08-cv-1744 and

appeal at 2nd Circuit 08-3242-cv, Strunk v US DOC Bureau of Census et al DCD

09-cv-1295. That all the Orders are challenged herein as Appellants are adamant

on the applicability of 28 USC §2284 to the reapportionment of all districts done in

April 2002 and subsequently pending the challenged 2010 Census Enumeration

and pending allotment to be used, and for 2012 Reapportionment, and request a

remand for a second amended complaint for such State Action. That Declarant

requests that this oral argument be done at the same time as that for Strunk v USPS

et al appeal case at 2nd Circuit 08-3242-cv (See A-147).


The broad question presented is whether district court, has failed to act on

the Federal matter of Federal interference first with the overly broad use of the

Voting Rights Act as a Bivens matter combined with State Action in use of such

questionable dicta which nullifies the entire basis for use of the State Constitution

in redistricting where all districts are drawn together, and are left in limbo for

forty-five years causing the internal collapse of State Governance with a permanent

intractable division without use of the State Constitution that otherwise is there

with ready solution mandates, long after the so-called “one –person one-vote”

Social Justice (1) Inquisition of the Jesuit controlled Judiciary, and after the Jesuit

The term "social justice" was coined by the Jesuit Luigi Taparelli in the
1840s, based on the teachings of Thomas Aquinas. He wrote extensively in his
journal Civiltà Cattolica, engaging both capitalist and socialist theories from a
natural law viewpoint. His basic premise was that the rival economic theories,
based on subjective Cartesian thinking, undermined the unity of society present in
Thomistic metaphysics; neither the liberal capitalists nor the communists
concerned themselves with public moral philosophy.
Pope Leo XIII, who studied under Taparelli, published in 1891 the
encyclical, Rerum Novarum (On the Condition of the Working Classes), rejecting
both socialism and capitalism, while defending labor unions and private property.
He stated that society should be based on cooperation and not class conflict and
competition. In this document, Leo set out the Catholic Church's response to the
social instability and labor conflict that had arisen in the wake of industrialization
and had led to the rise of socialism. The Pope taught that the role of the State is to
promote social justice through the protection of rights, while the Church must

temporal coadjutors supposedly cured the problem for which it was devised to

cure. District time and time again has failed to provide substantive due process to

safeguard New York State U.S. Citizens autonomy rights protected under the 9th

amendment with powers reserved to the PEOPLE under the 10th Amendment for

authority to enforce equal treatment and due process under the 14th amendment.


1. On April 20, 1777 the State of New York declared itself to be a sovereign

state with a State Constitution (“NYSC”), and as such it is not only the progenitor

of the Federal Constitution but still remains in force as to suffrage and State

Citizen Autonomy questions, notwithstanding specific amendments that until

such time a Federal Constitutional Convention brings forth a new Federal

speak out on social issues in order to teach correct social principles and ensure
class harmony.
The encyclical Quadragesimo Anno (On Reconstruction of the Social Order,
literally "in the fortieth year") of 1931 by Pope Pius XI, encourages a living wage,
subsidiarity, and teaches that social justice is a personal virtue as well as an
attribute of the social order: society can be just only if individuals and institutions
are just.
Pope Benedict XVI's encyclical Deus Caritas Est ("God is Love") of 2006
teaches that justice is the defining concern of the state and the central concern of
politics, and not of the church, which has charity as its central social concern. The
laity has the specific responsibility of pursuing social justice in civil society. The
church's active role in social justice should be to inform the debate, using reason
and natural law, and also by providing moral and spiritual formation for those
involved in politics.
The official Catholic doctrine on social justice can be found in the book
Compendium of the Social Doctrine of the Church, published in 2004 and updated
in 2006, by the Pontifical Council Iustitia et Pax.

Constitution, as such make sovereign the State of New York devised methods of

voting and state citizenship, as a requirement with the 14th Amendment.

2. The questionable nature of reapportionment process ongoing in New York

State after the 1960 Census and especially after 1965 without proper use of State

Constitution Article III with the challenged 2000 Census for the Legislature

without the anti-gerrymandering provisions therein are maneuvered now by

Defendants and predecessors since the friendly suit WMCA, Inc. v. Lomenzo, 377

U.S. 633 (June 15, 1962), with overly broad use combined with the Jesuits’

doctrine of “Social Justice” devised by Fr. Luigi Taparelli, S.J. that became the 14th

Amendment race for the bottom common denominator in 1868 with a “Living

Constitution”, defined the corporate collective entity supremacy over individual

rights that otherwise continue to be guaranteed by the Original Constitution (dead-

letter law) left un-amended. The Collective use of “Social Justice” doctrine by the

Fabian Progressives around the Nelson Rockefeller and Averill Harriman

Monocentrists using a godless Jesuit temporal coadjutor judiciary brought top-

down control with Rockefeller v. Orans, 382 U.S. 10 (October 11, 1965) and

Wolpoff et.al. v. Mario M. Cuomo et.al., 80 N.Y.2d 70, 600 N.E.2d 191, 587

N.Y.S.2d 560 (June 30, 1992) with complicity of the New York State Court of

Appeals ending in Federal Court.

3. Clearly the admitted non use of the State Constitution Article III by broadly

using an otherwise narrowly tailored Judicial Decision in WMCA and Rodriguez

underlies Appellants’ / Plaintiffs’ on-going difficulty in knowing with certainty

whether or not a Citizen is to seek redress of grievance and remedy relief in one

place– thereby the right to grievance redress un-infringed as a Federal 1st

Amendment issue is well covered in the original Federal Constitution body before

amendment as well as in the New York State Ratifying document of July 26, 1788,

and such enumerated rights are simultaneously for the PEOPLE sacrosanct

sovereign State Citizen rights guarantee protected continuously since April 20,


4. That the NYSC requirement that the People’s autonomy within each

corporate entity of the county system be provided to each State citizen elector in

perpetuity guaranteed by the 1777 original State Constitution Article XVI quote

“among the great districts and counties of this State, in proportion to the number

of their respective electors; so that the representation of the good people of this

State, both in the senate and assembly, shall forever remain proportionate and

adequate” protected in perpetuity against suffrage and autonomy rights

infringement shall forever remain proportionate and adequate in proportion to the

number of their respective electors with a ratio of 1 senator to 3 assemblymen as

done through 1962,

5. That following the 1970 census following the now famous case Roserio v

Rockefeller in the Supreme Court the NYS Election Law was transformed through

1976 and was submitted to the US Justice Department for “pre-clearance” review

under the VRA for its implementation in the present form of the 1978 pre-cleared

Election Law without we contend civil rights review done by the Secretary of State

under his responsibilities and duties.

6. Strunk’s Response summary argument in opposition to dismissal of State

defendants Any small upstate state sub-divisions composed of home rule towns are

not adequately represented in the Assembly without two assembly members

wholly within. Therefore must redraw state home rule subdivision with additional

towns within to have an effective local election board able to process two local

assembly and senate candidates; otherwise are forcing any contender to go to the

NYS Board of Elections instead of a local board at great inconvenience as an equal

treatment matter for voters and candidates, different than for a larger sub-division

with adequate population and properly political districts created wholly within.

7. There are state subdivisions that are of adequate population size entitled to

multiple assembly districts wholly within a senate district in turn wholly within the

subdivision. That voters are not treated equally with other subdivision voters such

as in NYC, Westchester, Suffolk, Nassau, Erie, Onondaga Monroe and others

except for Dutchess and Albany County in which Plaintiffs such as Loeber in the

rural portion and Deitz within Albany city is improperly divided up for the

assembly members within adversely effecting the rural portion voters.

8. Suffolk County that injured Plaintiff Person was done to undermine real

property values in the village of Farmingville was singled out different from

elsewhere. When illegal aliens were provided illegal sanctuary against federal law

for parties in interest maliciously at transport bulk load transfer points along the

Federal Highway serving various interstate corporate interests intent to exploit

illegal alien labor to under cut citizen living standards. That with the crime of

aiding and abetting sanctuary by parties in conspiracy with State Defendants and

those yet to be named, would be exposed with adequate discovery to have acted to

circumvent local zoning restrictions using arbitrary local law enforcement so that

illegal rentals for alien tenants would facilitate conspirators unjust enrichment for

some owners, but singled out other owners to destroy resale value in targeted areas

where Plaintiff Person lost property value as a matter directly with gerrymandering

with illegal alien sanctuary.

9. That in Nassau County specifically the House District of Caroline

McCarthy, involves the Local Election Board in conspiracy with Her office

maliciously to use gerrymandering that concealed public records from scrutiny,

carried out three elections after April 2002 that illegally allowed for the re-election

of McCarthy back to office with votes cast from the House District of

Congressman King illegally; and that when all the while Plaintiff Razzano was told

he was in the McCarthy’s district when in fact he was in King’s District. Then in

early 2007 Razzano discovered the true facts by thorough investigation, and by

conducting the investigation and follow-up with authorities such discovery and

administrative complaint exposed the extreme cover-up as a Federal and State

matter of criminal infringement of his rights and being singled out with denial of

equal protection of his 1st , 2nd , 5th 6th, 9th 10th and 14th amendments rights as a

state and Federal Bivens case action question directly effected as a result of

malicious gerrymandering with direct outrageous injury to Plaintiff Razzano.

10. That the injury to Plaintiff Cormier is on the record with an original affidavit

in the case before Judge Bates in Person v. The NYS BOE SDNY 06-cv-6365, a

case in which Declarant also had intervened in the matter of infringement of voter

speech and expectation of success for any challenger candidacy involving the

USPS as a supplement therein denied now as a matter before Judge Ross in the

EDNY with a petition for relief.

11. That Plaintiff Cormier and Declarant are from adjoining Senate, Assembly

and Congressional Districts and inter alia have complained that voters within

Brooklyn do not have districts drawn with total eligible voters that meet the 10%

de minimus requirements of the VRA; and that each district is different than NYC

on the average, and are effected as a result of illegal gerrymandering, and that the

senate districts drawn do not contain assembly districts wholly within as with the

Congressional districts too. None follows state law guidelines set by the state

constitution in regards to the way both the assembly and the senate are drawn; and

that Declarant complains of in the Case Strunk v. USPS et al., EDNY 08-cv-1744.

(See A-159)

12. That plaintiff Sacoff of Staten Island along with Mr. Cormier and Declarant

are injured by the failure to provide bottom-up home rule in the boroughs and by

drawing political districts illegally against the express State Constitution using

illegal aliens to disproportionately diminish and dilute voting strength effects the

ability of candidates and voters to elect representation and has infringed voters

expectation and voter turnout as a result of illegal redistricting.

13. That as mentioned above Mr. Bombard is injured by the fact that Hamilton

and Fulton Assembly, Senate and House districts are not shared as with the 1992

redistricting, do not elect together and as a result also injure Mr. Gage in

Washington County.

14. That both Ms. Rabenda in Dutchess and Mr. Van Allen in adjoining Ulster

are injured accordingly by districts improperly drawn as referenced similarly above

and that each sub-division is without a dedicated voice in the State legislature due

to both gerrymandering misapplication and misadministration of the state

constitution and despite decisions of the U.S. Supreme Court as in the WMCA

series of cases; and that the Assembly districts in state subdivisions with

diminished population size as with Ulster county require strict use of the express

State Constitution Article III, instead are drawn to serve special interests for

questionable purposes in what may be properly termed an enterprise under the

RICO Act as inferred in the ongoing relationship of Thomas J. Spargo to the

decades long activity of the Pyramid Companies all over the State (See A-208).


ISSUE 1: Court failed to answer the interrogatories posed in the Appellant’s letter

motion for reconsideration (See A-24) of the Order to Dismiss (See A-16) to

afford the opportunity within the reconsideration timeframe to duly file the

requisite motion for the Judge’s recusal with 28 USC §144 in re 28 USC §455. In

that, Declarant and Plaintiffs’ ninth and tenth amendment right to receive

inalienable rights given by Almighty God not by any man or entity has been denied

by the Court.

That the nature of the matter before the Court requires any Judge to

absolutely believe in God. In that, the Preamble to the New York Constitution

states quote:

“We The People of the State of New York, grateful to Almighty God for our
Freedom, in order to secure its blessings, DO ESTABLISH THIS

Declarant’s inalienable rights are given by Almighty God not a man, men or

entities, and contends that Judge Lawrence E. Kahn does not believe in Almighty

- 10 -
God for our freedom, is a Gnostic un-believer; and therefore, must recuse himself

in that the Judge by default accepts a usurper temporal power in provision of

rights, whose one world temporal and spiritual leader is the Pope over all men

including Islam as the Gnostic / Mithra / Zoroastrian Mystery Religion not

Messianic Judaism whose Christianity is based upon the Torah and Trinity.

That as a Census matter not before this Court, Declarant contends the

present Usurper in the Office of POTUS, Barry Soetoro (a.k.a. Barack Hussein

Obama) is a radical Sunni Muslim whose Chain of Command leading and

controlling him and his administration is that of Adolfo Nicolas, 30th Superior

General of the Society of Jesus in the Vatican City State (See A-213) is continuing

the Social Justice Inquisition race to the Bottom against individual rights in favor

of the corporate nature of the collective in the ongoing 2010 Census enumeration

that will render a new reapportionment here in New York requiring issues here

before this court to clarify.

There is no possible way Appellants may obtain a fair hearing without a

Judge(s) dedicated to Almighty God for our freedom and the Original Constitution.

ISSUE 2: Court erred as to Rule 12 motion; Plaintiffs must pass the “‘plausibility

standard,’ which obliges a pleader to amplify a claim with some factual allegations

in those contexts where such amplification is needed to render the claim plausible.”

Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)

- 11 -
ISSUE 3: Court erred in the matter of Plaintiff’s request “In challenging the

constitutionality of the apportionment of congressional districts or the

apportionment of any statewide legislative body.” 28 U.S.C. § 2284(a). First,

however, to determine whether a three-judge panel is required, the single judge

must inquire (1) “whether the constitutional question raised is substantial”; (2)

“whether the complaint at least formally alleges a basis for equitable relief”; and

(3) “whether the case presented otherwise comes within the requirements of the

three-judge statute.” Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715 (1962).

ISSUE 4: Court erred in the matter that a single judge may dismiss a claim if the

Constitutional claim is substantial, or “if the plaintiff lacks standing or the suit is

otherwise not justiciable in the district court.” 17A C. Wright & A. Miller, Federal

Practice and Procedure §4235, at 213 (2007); the Amended Complaint is


That any false statement by the Judge that discredits or distracts from the

reputation of Declarant / Appellants’ rights, property, is grounds for recusal and

by such injurious falsehood libels and defames title to our social contract (e.g.

New York State Constitution) equity as applies under the NYS Constitution Article

3 Section 5 that for Brooklyn (a/k/a Kings County) from April 2002 applies to

Declarant’s New York 18th Senate District (SD) that is done differently for all SDs

within Brooklyn as with Declarant’s 57th Assembly District and 11th

- 12 -
Congressional District (CD) that all shall be reapportioned together and are directly

inter-related and to be nested for the effective governance and association of and

by the people within; instead all have an arbitrary boundary through arbitrary and

outrageous gerrymandering that goes to Declarant’s equity injury here and as is

also complained of in the 2nd Circuit Appeal Case shown in the Appendix at A-147

to A-190 despite the express mandate of the NYS Constitution, quote:

“Assembly districts as nearly equal in number of inhabitants, excluding

aliens (2), as may be, of convenient and contiguous territory in as compact
form as practicable, each of which shall be wholly within a senate district.”

“In counties having more than one senate district, the same number of
assembly districts shall be put in each senate district, unless the assembly
districts cannot be evenly divided among the senate districts of any county”;

ISSUE 5: Court erred when it assumed that not only does this claim rest on an

incorrect assumption that New York City is a single county, as opposed to

consisting of five separate counties, see the Article by Jack B. Weinstein at A-191

in which his supposition is found wanting 45 years later, and ignores the entire

The use of the term “Aliens” according to the State Constitution may only mean
those “Permanent Resident Aliens” and Citizens legally resident within the State
that according to Article 3 Section 5-a is the definition of “inhabitants”, and does
not include tourists, transients, diplomats and respective family at will; and since
the State has no power to naturalize any person, any reading may only expressly
mean what the State Constitution mandates so that the Federal Court is obligated
not to construe an interpretation to such express meaning or otherwise must seek
an interpretation by the New York State Court of Appeals by the certification

- 13 -
upstate relationship to NYC per se that now wants to split the State entire in two

parts (See A-209 and A-210); in the Introduction states, quote:

“The reapportionment decisions of the United States Supreme Court

in Reynolds v. Sims and companion cases requiring that representation in
both houses of state legislatures be proportionate to the number of people
represented under the principle of "one man, one vote"-are likely to have a
profound effect on county and other forms of local government. There is
every indication that the Reynolds rule applies to county boards of
supervisors, the bodies that usually exercise all of a county’s legislative and,
in many instances, much of its executive power, as well as to general
purpose units of local government such as villages, towns, cities and
This article is primarily concerned with the effect of the
reapportionment decision on representation within the country. In this
context, it is important to recognize that reapportionment of a state
legislature will tend to increase the significance of the county as a unit of
local government. The shift of political power and the increase in state aid
and attention to the densely populated urban and suburban areas is likely to
accelerate the growing reliance on county government. While it will not
always be possible for each county to be separately represented in the state
legislature, there is no reason to believe that this fact will adversely affect
the significance of county government any more than does present
congressional districting which, in many instances, also ignores county lines.
Baseless, therefore, is the fear that redistricting of the state legislature could
lead to the end of counties as units of government at a time when “more
people need this local representation”. As the National Municipal Leaders
accurately pointed out, "county functions have been growing in number,
importance and magnitude. This process has been particularly marked in
metropolitan communities, but has by no means been confined to them." In
fact, the Federal Advisory Commission on Intergovernmental Relations has
suggested, as one of a number of desirable improvements in local
government, that smaller governmental units "transfer responsibility for
specified governmental services to the county by coordinate mutual action
by the governing bodies concerned."
Municipal powers in this country are concurrently exercised by units
with general powers of government and by a vast number and variety of
special and limited purpose entities. Since the impact of constitutional
apportionment may vary with the type of governmental unit involved, this

- 14 -
article will treat general and special purpose entities separately. Only the
most tentative predications are possible at this early stage in the
development of apportionment doctrine. Nevertheless, it is suggested that
very few of our special purpose units of local government will be directly
affected and that litigation to compel changes in their structure because
concepts of equal voting have been violated will generally prove fruitless. It
is quite possible, however, that in the process of making necessary changes
in county and other general-purpose forms of local government, substantial
attention will be given to the rationale of our municipal government
structure. The Supreme Court's decisions, therefore, may indirectly have a
substantial effect on special purpose units of government.”

Further, Jack B. Weinstein states as to the elimination of all home rule for the five

counties within the once federated city of New York now reduces each to merely

boroughs per se, no longer are counties per se according to home rule requirements

necessary for equal treatment of the residents within. That such counties New

York, Bronx, Kings, Queens and Richmond now exist as an extra constitutional

fiction in name only, with vestigial functions that operate in a patronage vacuum

by habit only without home rule, which is an equal protection matter in comparison

to the other 57 counties as to the “one man one vote” application are not full

fledged counties with home rule and that NYC is to Jack B. Weinstein a “matured

metro” or territory defined in the State Constitution and Article 9 as to local home-

rule (end note), (See A-195) quote:

“5. The City of New York, though once a federation of boroughs that were
separate municipalities, now represents an almost fully integrated
municipality. It is therefore treated, for the purposes of this analysis, as a
matured metro. (Emphasis added)

- 15 -
When first established, the City of Greater New York had a strong
Board of Estimate organized with equal representation from the large
boroughs and with greater representation from the less populous boroughs
than their populations warranted. Substantial powers were left in the hands
of borough and county officials so that these units retained a semi-
independent status. In this situation, it is conceivable that strict and
immediate application of the "one man, one vote" concept would have
frustrated attempts at consolidation.
Since its organization, there has been a steady march in New York
City towards integration of services, reduction of county and borough
autonomy, and reduction of the powers of the Board of Estimate through a
shift in authority to the Mayor and a legislative body representing the city as
a whole. The Board of Estimate is now controlled by officials elected by the
city's voters-the Mayor, Comptroller and President of the Council have four
votes each while the five Borough Presidents, elected borough-wide, have
two votes each. This body exercises executive-administrative rather than
legislative functions. It does "not participate in local legislation" although it
does "share power with the Council in passing on the Mayor's Expense and
Capital Budgets."
The validity of the allocation of votes in the Board of Estimate has
recently been challenged. This appears to be the first case in which a
plaintiff has urged that the "one man, one vote" principle should be applied
to a municipal body that does not have powers of legislation. An argument
might be spelled out, based on Gray v. Sanders, that since votes for an
elective executive office must be of equal weight, the same principle applies
to representation on a board jointly exercising executive powers. Strictly
speaking, then, the Board of Estimate's voting procedures would violate the
federal constitution because Richmond, the smallest borough in population,
now has the same voting power as the largest. In fact, however, the
discrimination is probably not substantial in view of the control exercised by
officials representing the entire city and the relatively minor functions of the
Board of Estimate.
The New York City Council, on the other hand, "shall be vested,"
according to the Charter, "with the legislative power of the city, and shall be
the local legislative body of the One councilman is elected from each state
senate district lying wholly or partly within the city. Two councilmen are
elected at large from each borough; they may not be of the same political
party. This assignment of two at-large councilmen's posts to each borough,
regardless of its population, creates a built-in and deliberate disproportion of

- 16 -
voting strength favoring the less populated boroughs. Whether the
discrimination in New York City is de minimus or whether it can be justified
upon the ground that the city is historically a federation of formerly
independent municipalities is not completely clear.”

Furthermore, Jack B. Weinstein states in the Conclusion (See A-198) quote:

“Equal protection of the laws at the municipal level is no less

important than it is at state and national levels. There is substantial reason
for concluding that local general purpose governments must now comply
with federal standards for representation proportionate to population. It is
doubtful, however, whether these standards are applicable to most of our
special purpose local governmental agencies.
As a result of the Supreme Court decisions on apportionment, this
country is now faced with a great challenge and opportunity to re-examine
its forms of local government and to improve them sufficiently to meet the
growing demands thrust upon them. There should be no appreciable
inhibition, as a result of the reapportionment cases, on those responsible
officials, citizens and students who are searching for means to coordinate
and rationalize our municipal government structures in metropolitan and
other areas.
The problem of mal-apportionment at the local level will probably be
resolved-as are most of our constitutional-political problems-by a series of
compromises. In some cases county legislatures will be increased in size in
order to protect the right of representation of the smallest governmental
units; in other instances the smallest governmental units, in terms of
population, will be combined for purposes of election of representatives to
the governing body. Where possible, neighborhood and political subdivision
lines will be followed. We should bear in mind, in this connection, Chief
Justice Warren's warning that "indiscriminate districting, without any regard
for political subdivision or natural or historical boundary lines, may be little
more than an open invitation to partisan gerrymandering."
Some have expressed despair at ever alerting the citizen to the need
for municipal reform. They doubt that leadership will "forswear present
power and prerogative," and that the public will "adopt a new consciousness
toward their neighbors." Despite these forebodings, there is a vast reservoir
of good sense and a pride in local institutions which can be utilized to obtain
approval of change. The need must be made clear to the public; it must be
made to understand why changes are beneficial. Blind opposition to

- 17 -
improvement is seldom able completely to withstand patient, sustained and
well documented appeals to reason.
The modifications that are bound to result from a fresh view of our
system will certainly strengthen it. Ironically, what has been deemed by
some an objectionable assumption of power by the federal government
through Baker v. Carr and Reynolds v. Sims, may ultimately help slow and
reverse the movement toward centralization of power in Washington and in
state Capitals.”

Forty-five years later with much tinkering including the creation of un-elected

municipal community boards, created by the Johnson Administration so-called

“Great Society Program” haunts our every waking hour, no polycentric local

government per se or bottom-up representation is anywhere within NYC, only a

Monocentrist totally top-down corporatist entity, unlike any other state-

subdivision, that is a seriously out of control as an equal protection matter gobbling

up real property and policy control as far away as two hundred miles from its

municipal border in many upstate State sub-divisions.

ISSUE 6: Courts erred when it broadly assumed that Article 3, Section 4 entire

section was among the constitutional reapportionment provisions declared

unconstitutional in WMCA Inc. v. Lomenzo, 377 US 63 (1963).

ISSUE 7: Courts erred when it somehow assumes the Amended Complaint does

not appear to present a discernable reapportionment claim under the federal

constitution, when in fact all reapportionment is a state issue for all district

including the CDs only covered under the respective state constitution, such that

- 18 -
there IS a cause to convene a three-judge panel, to correct the over broad use of a

federal decision for which is had no jurisdiction otherwise.

ISSUE 8: Court erred when in addition, the Court notes that a constitutional

question is insubstantial if prior decisions render the issue frivolous and leave no

room for any inference of controversy. Goosby v. Osser, 409 U.S. 512, 518 (1973)

does not apply herein;

ISSUE 9: Court erred in use of Bailey v. Patterson, 369 U.S. at 33, therein holding

that a three-judge panel is not required when “prior decisions make frivolous any

claim” of unconstitutionality does not apply, when neither WMCA or the associated

cases apply herein in such a broad nullification of an entire state constitution as it

has done by destroying the balance of our legislature and state-subdivisions (See

A-209 and A-210) some needs to hang for the damage done!

ISSUE 10: Court erred when it contends the redistricting plan presently challenged

by Plaintiffs has already withstood scrutiny under constitutional challenges

including one person-one vote, population-based and gerrymandering. Rodriguez v.

Pataki, 308 F.Supp.2d 346 (S.D.N.Y.), aff’d, 125 S.Ct. 627 (2004) was not meant

to be over-broadly, but the Judge alleges nonetheless that somehow therein grant of

summary judgment and dismissing complaint because the redistricting plan did not

violate the Fourteenth Amendment or the Voting Rights Act, but instead reflected

traditional districting principles by maintaining equality of population). That

- 19 -
decision upholding the redistricting plan was reached by a three-judge panel and

affirmed by the Supreme Court of the United States. Id. One of two Orders

regarding Declarant’s attempted intervention therein in June 2002, see A-201,

granted the opportunity to file a separate case to challenge the gerrymandering

without prejudice. Stated, “Mr. Strunk is free to bring an independent action.” (See

A-204), which Declarant proceeded to do in the case herein.

ISSUE 11: Court erred in re to the Order Section B. Analysis of Plaintiff’s claims

in turning to the Amended Complaint, the Court although aware that because

Plaintiffs are preceding pro se, the Amended Complaint is to be construed

liberally. Phillips v. Girdich, 408 F.3d 124, 127-28 (2d Cir. 2005) failed to do so.

Initially, the Court notes that the first, fifth, ninth, tenth, eleventh, thirteenth, and

fourteenth causes of action allege violations related to HAVA. These claims,

however, were dismissed by the Court’s Order dated January 8, 2008. Dkt. No. 81.

ISSUE 12: Court erred in the ORDER in re Plaintiffs’ second cause of action and

the sixth cause of action that alleges violation of New York State Constitution

Article 3 Section 4 based on New York City’s allotment of 26 senate districts,

inferring claim(s) rest on an incorrect assumption that New York City is a single

county, as opposed to consisting of five separate counties, but Article 3, Section 4

was among the constitutional reapportionment provisions declared

§4. Except as herein otherwise provided, the federal census taken in the year

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nineteen hundred thirty and each federal census taken decennially thereafter shall be
controlling as to the number of inhabitants in the state or any part thereof for the
purposes of the apportionment of members of assembly and readjustment or alteration
of senate and assembly districts next occurring, in so far as such census and the
tabulation thereof purport to give the information necessary therefor.
The legislature, by law, shall provide for the making and tabulation by state
authorities of an enumeration of the inhabitants of the entire state to be used for such
purposes, instead of a federal census, if the taking of a federal census in any tenth year
from the year nineteen hundred thirty be omitted or if the federal census fails to show
the number of aliens or Indians not taxed.
If a federal census, though giving the requisite information as to the state at
large, fails to give the information as to any civil or territorial divisions which is
required to be known for such purposes, the legislature, by law, shall provide for such
an enumeration of the inhabitants of such parts of the state only as may be necessary,
which shall supersede in part the federal census and be used in connection therewith
for such purposes.
The legislature, by law, may provide in its discretion for an enumeration by
state authorities of the inhabitants of the state, to be used for such purposes, in place
of a federal census, when the return of a decennial federal census is delayed so that it
is not available at the beginning of the regular session of the legislature in the second
year after the year nineteen hundred thirty or after any tenth year therefrom, or if an
apportionment of members of assembly and readjustment or alteration of senate
districts is not made at or before such a session.
At the regular session in the year nineteen hundred thirty-two, and at the first
regular session after the year nineteen hundred forty and after each tenth year
therefrom the senate districts shall be readjusted or altered, but if, in any decade,
counting from and including that which begins with the year nineteen hundred thirty-
one, such a readjustment or alteration is not made at the time above prescribed, it shall
be made at a subsequent session occurring not later than the sixth year of such decade,
meaning not later than nineteen hundred thirty-six, nineteen hundred forty-six,
nineteen hundred fifty-six, and so on; provided, however, that if such districts shall
have been readjusted or altered by law in either of the years nineteen hundred thirty or
nineteen hundred thirty-one, they shall remain unaltered until the first regular session
after the year nineteen hundred forty.
Such districts shall be so readjusted or altered that each senate district shall
contain as nearly as may be an equal number of inhabitants, excluding aliens, and be
in as compact form as practicable, and shall remain unaltered until the first year of the
next decade as above defined, and shall at all times consist of contiguous territory,
and no county shall be divided in the formation of a senate district except to make two
or more senate districts wholly in such county.
No town, except a town having more than a full ratio of apportionment, and no

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unconstitutional in WMCA Inc. v. Lomenzo, 377 US 63 (1963). However, Judge

Walker in the absence of a request for the reduction of the existing senate seats

from 62 to the original 50 as the only solution after the enlargement ratio was

declared unconstitutional by WMCA merely cited in the Rodriguez Decision and

Order to dismiss the case State Constitution Article 3 §2.

“The senate shall consist of fifty members, except as hereinafter provided.

The senators elected in the year one thousand eight hundred and ninety-five
shall hold their offices for three years, and their successors shall be chosen

block in a city inclosed by streets or public ways, shall be divided in the formation of
senate districts; nor shall any district contain a greater excess in population over an
adjoining district in the same county, than the population of a town or block therein
adjoining such district.
Counties, towns or blocks which, from their location, may be included in either
of two districts, shall be so placed as to make said districts most nearly equal in
number of inhabitants, excluding aliens. No county shall have four or more senators
unless it shall have a full ratio for each senator. No county shall have more than one-
third of all the senators; and no two counties or the territory thereof as now
organized, which are adjoining counties, or which are separated only by public
waters, shall have more than one-half of all the senators.

The ratio for apportioning senators shall always be obtained by dividing the number
of inhabitants, excluding aliens, by fifty, and the senate shall always be composed of
fifty members, except that if any county having three or more senators at the time of
any apportionment shall be entitled on such ratio to an additional senator or senators,
such additional senator or senators shall be given to such county in addition to the
fifty senators, and the whole number of senators shall be increased to that extent.
(Declared unconstitutional by the WMCA case)

The senate districts, including the present ones, as existing immediately before the
enactment of a law readjusting or altering the senate districts, shall continue to be the
senate districts of the state until the expirations of the terms of the senators then in
office, except for the purpose of an election of senators for full terms beginning at
such expirations, and for the formation of assembly districts. (Amended by vote of the
people November 6, 1945.)

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for two years. The assembly shall consist of one hundred and fifty members.
The assembly members elected in the year one thousand nine hundred and
thirty-eight, and their successors, shall be chosen for two years. (Amended
by vote of the people November 2, 1937; November 7, 2001.) “

ISSUE 13: Court erred in that the seventh cause of action gerrymandering claim as
against the 2002 New York redistricting plan is not insubstantial based on a prior
ISSUE 14: Court erred in the less than liberal construction of the following: “That

Plaintiffs as US Citizens are denied equal protection and substantive due process

suffer injury to individual Bottom up suffrage and Home rule, shown as footnote 2,

autonomy of the PEOPLE within a municipal entity as a firewall against corruption

entitled to a respective board of elections therein, suffer infringement of speech in

the state legislature and the U.S. House, unequal due process in the judiciary and

unreasonable unequally reimbursed unfunded financial burden upon New York

citizen property differently than that for citizens of the several states, as a taking

imposed by unconstitutional provisions of HAVA in the Congressional definition

of “Voting Age Person” (“VAP”) rather than “Citizen Voting Age Persons”

(“CVAP”), is prima facie discrimination evidence proven in related case . . .” Am.

Compl. ¶ 30 (See A-100).


The Defendants in this and other cases argue that the Voting Rights Act

(“VRA”) combined with the Supremes decision in Reynolds v. Sims, 377 U.S. 533

(1964) 377 U.S. 533 hold the “one-person one-vote” as a generality makes a

- 23 -
virtual representation for minors and non-citizens, as if either class were members

of the PEOPLE defined as citizens entitled to suffrage and autonomy in the county

of residence and that the State Constitution in its entirety as for the States’ plenary

authority over any reapportionment is sealed by the Warren Court. To the contrary

Minors like aliens are not part of the PEOPLE despite what the AAG purports the

State Legislature has no authority to violate the State Constitution, despite

requirements of the State Civil Rights Law Sections 2 thru 10(4), the AAG

somehow gives Congress authority that supplants the authority of the New York

State Constitution Article III as then is related to all other Articles especially

Article VI for election in the Judiciary and Article IX guarantee of the Supreme

sovereignty in the PEOPLE shall be stakeholders in a County corporation entity or

the City of New York municipal corporation person that supplants the five counties

S 2. Supreme sovereignty in the people. No authority can, on any pretence
whatsoever, be exercised over the citizens of this state, but such as is or shall be
derived from and granted by the people of this state.
S 3. Levying taxes and charges. No tax, duty, aid or imposition whatsoever,
except such as may be laid by a law of the United States, can be taken or levied within
this state, without the grant and assent of the people of this state, by their
representatives in senate and assembly; and no citizen of this state can be by any
means compelled to contribute to any gift, loan, tax, or other like charge, not laid or
imposed by a law of the United States, or by the legislature of this state.
S 9. Freedom of elections. All elections ought to be free; and no person by
force of arms, malice, menacing, or otherwise, should presume to disturb or hinder
any citizen of this state in the free exercise of the right of suffrage.
S 10. Justice to be administered without favor and speedily. Neither
justice nor right should be sold to any person, nor denied, nor deferred; and writs and
process ought to be granted freely and without delay, to all persons requiring the
same, on payment of the fees established by law.

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by residence within. This appeal challenges the foolishness that somehow contends

that Congress has somehow been given the power over the State of New York as if

a territory not a sovereign State of the original founding States separate and apart

from those later created under the Organic Acts after 1801 and somehow resurrects

a State Legislature’s right to make a reapportionment which drastically impact

State Citizen fundamental rights as with use of NYSC ART III anti-

gerrymandering mandates along with the 1/3 and 1/2 rules as applies to size of

territory for municipalities that take away county home-rule and that must be

applied to redistricting of NYS Senate and Assembly seats simultaneously with all

CDs too; as they must be nested and interrelated for the benefit of the People with

suffrage control over their representation. That otherwise NYC is too big for a

municipality in size and illegally controls not only the entire State legislative

process, but when combined with the adjoining entity Westchester or Nassau

illegally controls further amendment to the constitution and or constitutional

convention. That all this flows from the broad use of the VRA to abridge Citizen

rights which now is used over-broadly for purposes never intended 45 years after

enactment, violates Plaintiffs’ rights.

The Appellants reference Election Law mischief injury measured with “bad

man theory” use of the VRA 10% rule that isn’t enforced for any district drawn in

the 2002 Gerrymandering in New York; and is unlike the role of County

- 25 -
boundaries in New Jersey as reviewed in the case Karcher v. Daggett should apply,

isn’t broadly used as a compelling State interest rather than narrowly must be the

intent by Congress under express powers given it not to interfere with compelling

State interest as reapportionment is for all districts within the confines of one-man

one-vote intended in the Original New York State Constitution cited above.

Declarant refers to the Supreme Court decision in Bethlehem Steel Co. V. New

York State Labor Relations Bd., 330 U.S. 767 (1947) to be used when determining

whether exclusion of state power will or will not be implied, in consideration taken

in respect to the relationship of federal and state power as to the general subject

matter as illustrated by the case in hand. Therein the interstate Bethlehem

companies were authorized to do business in New York State, they operate large

manufacturing plants in that state, they draw their labor supply from its residents,

and the impact of industrial strife in their plants is immediately felt by state police,

welfare and other departments. Their labor relations were primarily of interest to

the state, within its competence legally and practically to regulate, and until

recently were left entirely to state control. Thus, the subject matter is not so

'intimately blended and intertwined with responsibilities of the national

government' that its nature alone raises an inference of exclusion. Cf. Hines v.

Davidowitz, 312 U.S. 52, 66 , 61 S.Ct. 399, 403. Unlike in the Matter of labor law

and state police power however provision of suffrage is as recognized in the

- 26 -
Copenhagen Treaty of 1993 that State sovereignty in the provision of suffrage is

nearly an entirely plenary matter except for express limited Constitutional powers

given to Congress and by amendments is violated with broad use of the VRA that

by mischief prevents PROPER use of the State Constitution Article III.

What is a republican form of government?

Appellant s’ understanding of the Guarantee of a republican form of

government is transformed through the various permutations into its final form in

Article IV, the object of the clause seems clearly to have been more than an

authorization for the Federal Government to protect States against foreign invasion

or internal insurrection, a power seemingly already conferred in any case. No one

can now resurrect the full meaning of the clause and intent, which moved the

Framers to adopt it, but with the exception of the reliance for a brief period during

Reconstruction the authority contained within the confines of the clause has been

largely unexplored.

In Luther v. Borden, the Supreme Court established the doctrine that

questions arising under this section are political, not judicial, in character and that

''it rests with Congress to decide what government is the established one in a State

. . . as well as its republican character.'' Texas v. White held that the action of the

President in setting up provisional governments at the conclusion of the war was

justified, if at all, only as an exercise of his powers as Commander-in-Chief and

- 27 -
that such governments were to be regarded merely as provisional regimes to

perform the functions of government pending action by Congress. On the ground

that the issues were not justiciable, the Court in the early part of this century

refused to pass on a number of challenges to state governmental reforms and thus

made the clause in effect non-cognizable by the courts in any matter, a status from

which the Court's opinion in Baker v. Carr, despite its substantial curbing of the

political question doctrine, did not release it.

Similarly, in Luther v. Borden, the Court indicated that it rested with

Congress to determine upon the means proper to fulfill the guarantee of protection

to the States against domestic violence. Chief Justice Taney declared that Congress

might have placed it in the power of a court to decide when the contingency had

happened which required the Federal Government to interfere, but that instead

Congress had by the act of February 28, 1795, authorized the President to call out

the militia in case of insurrection against the government of any State. It followed,

said Taney, that the President ''must, of necessity, decide which is the government,

and which party is unlawfully arrayed against it, before he can perform the duty

imposed upon him by the act of Congress'', which determination was not subject to

review by the courts.

The key question of first impression here is characterized August 5, 2002

by Assistant Attorney General Joel Graber in the Rodriguez v. Pataki SDNY case

- 28 -
02-cv-618 in regards to the VRA lack of relationship to the State Constitution for

a republican form of government question raised first in Luther and then by the

dissenting Justice Felix Frankfurter in Baker v. Carr; therein elaborated on the

history and conditions necessary for the Federal courts under the 14th amendment

to interfere in State political questions in the usurpation of the government

against the pre existing State Constitution and prima facie proof as to Defendants’

acts of sedition with combined State Action. The PEOPLE / Plaintiffs /

Appellants affected by such acts are without remedy for redress of grievance,

suffer speech and suffrage injury by a non-constitutional form of gerrymander

resulting in disproportionate diminished dilution of voting strength with lack of

any possibility of effective participation in the electoral process.

It is essential that the requirement for the structure mandated by the NYSC

for such constitutional revisions and or Convention be rigorously implemented by

this court with only a narrow use for Judicial ruling as to one-person one-vote.

Otherwise, as is amply proven the remedy will not be done or found by any of the

bad actors in the government of New York especially the Judiciary who are

especially bad actors complicit with disenfranchising citizens all over the state -

who are those citizens not part of the majoritarian control of patronage policy and


- 29 -

The 2010 Census enumeration is ongoing and Declarant is challenging the

mis-application and mis-administration of 13 USC $ 141 and 13 USC $ 195

(Strunk v US DOC Bureau of Census et al. DCD 08-cv-1295 (RJL) with a motion

there for a 3-Judge panel) as then would apply for use of the 2 USC $2a allotment

by Congress to each State of the several States for the 2012 State

Reapportionment ten years later. Judge Kahn's background shows he is biased

and protects the godless Fabian "Social(ist) Justice" Progressive Inquisition of the

Jesuits' ancien regime; and that Judge Kahn should have answered Declarant's

questions related to the 28 USC $ 144 preparations for the 28 USC $455 recusal.

Or otherwise absent a writ of mandamus for such set of answers Judge Kahn must

be surrounded by two intellectually competent god-fearing judges with 28 USC


$2284, dependent upon this Court settling of the substantial nature of .this

gerrymander challenge must decide to remand this case as a matter of judicial

economy of schedule back to District to hear a second amended complaint

brought forward six years into preparation for the 20 12 Census reapportionment.

Respectfully submitted and certified to be true under penalty of perjury,

Dated: January 5,20 10

Brooklyn, New York

593 Vanderbilt Avenue - #28 1

Brooklyn., New York 11238
(845) 90 1-6767 Email: chris@,strunk.ws
32(A)(7)(C) FOR CASE NUMBER NO. 08-4323

I certify that: Pursuant to Fed. R. App. P. 32 (a)(7)(C), the foregoing Appellant

brief is proportionately spaced, has a typeface of 14 points or more and contains

8.936 words within the 14,000 words allowable including the End Notes.

Errata Corrections supplemental to the Appellant Filing of January 4,20 10 are

respectfUlly submitted and certified to be true under penalty of perjury,

Dated: January 5,2010

Brooklyn, New York
Christopher-Earl: Strunk in esse
593 Vanderbilt Avenue - #28 1
Brooklyn., New York 11238
(845) 90 1-6767
Email: chris@,stnuzk.ws

NYSC ARTICLE IX * Local Governments [*New article adopted by amendment

approved by vote of the people November 5, 1963. Former Article IX repealed,
except for sections 5, 6 and 8 which were relettered subdivisions (a),(b) and (c)
respectively of new section 13 of Article XIII. ]

Bill of rights for local governments.

Section 1. Effective local self-government and intergovernmental cooperation are

purposes of the people of the state. In furtherance thereof, local governments shall
have the following rights, powers, privileges and immunities in addition to those
granted by other provisions of this constitution:
(a) Every local government, except a county wholly included within a city,
shall have a legislative body elective by the people thereof. Every local government
shall have power to adopt local laws as provided by this article.
(b) All officers of every local government whose election or appointment is
not provided for by this constitution shall be elected by the people of the local
government, or of some division thereof, or appointed by such officers of the local
government as may be provided by law.
(c) Local governments shall have power to agree, as authorized by act of the
legislature, with the federal government, a state or one or more other governments
within or without the state, to provide cooperatively, jointly or by contract any
facility, service, activity or undertaking which each participating local government
has the power to provide separately. Each such local government shall have power
to apportion its share of the cost thereof upon such portion of its area as may be
authorized by act of the legislature.
(d) No local government or any part of the territory thereof shall be annexed
to another until the people, if any, of the territory proposed to be annexed shall
have consented thereto by majority vote on a referendum and until the governing
board of each local government, the area of which is affected, shall have consented
thereto upon the basis of a determination that the annexation is in the over-all
public interest. The consent of the governing board of a county shall be required
only where a boundary of the county is affected. On or before July first, nineteen
hundred sixty-four, the legislature shall provide, where such consent of a
governing board is not granted, for adjudication and determination, on the law and
the facts, in a proceeding initiated in the supreme court, of the issue of whether the
annexation is in the over-all public interest.
(e) Local governments shall have power to take by eminent domain private
property within their boundaries for public use together with excess land or

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property but no more than is sufficient to provide for appropriate disposition or use
of land or property which abuts on that necessary for such public use, and to sell or
lease that not devoted to such use. The legislature may authorize and regulate the
exercise of the power of eminent domain and excess condemnation by a local
government outside its boundaries.
(f) No local government shall be prohibited by the legislature (1) from
making a fair return on the value of the property used and useful in its operation of
a gas, electric or water public utility service, over and above costs of operation and
maintenance and necessary and proper reserves, in addition to an amount
equivalent to taxes which such service, if privately owned, would pay to such local
government, or (2) from using such profits for payment of refunds to consumers or
for any other lawful purpose.
(g) A local government shall have power to apportion its cost of a
governmental service or function upon any portion of its area, as authorized by act
of the legislature.
(h) (1) Counties, other than those wholly included within a city, shall be
empowered by general law, or by special law enacted upon county request
pursuant to section two of this article, to adopt, amend or repeal alternative forms
of county government provided by the legislature or to prepare, adopt, amend or
repeal alternative forms of their own. Any such form of government or any
amendment thereof, by act of the legislature or by local law, may transfer one or
more functions or duties of the county or of the cities, towns, villages, districts or
other units of government wholly contained in such county to each other or when
authorized by the legislature to the state, or may abolish one or more offices,
departments, agencies or units of government provided, however, that no such
form or amendment, except as provided in paragraph (2) of this subdivision, shall
become effective unless approved on a referendum by a majority of the votes cast
thereon in the area of the county outside of cities, and in the cities of the county, if
any, considered as one unit. Where an alternative form of county government or
any amendment thereof, by act of the legislature or by local law, provides for the
transfer of any function or duty to or from any village or the abolition of any
office, department, agency or unit of government of a village wholly contained in
such county, such form or amendment shall not become effective unless it shall
also be approved on the referendum by a majority of the votes cast thereon in all
the villages so affected considered as one unit.
(2) After the adoption of an alternative form of county government by a
county, any amendment thereof by act of the legislature or by local law which
abolishes or creates an elective county office, changes the voting or veto power of
or the method of removing an elective county officer during his or her term of
office, abolishes, curtails or transfers to another county officer or agency any

- 33 -
power of an elective county officer or changes the form or composition of the
county legislative body shall be subject to a permissive referendum as provided by
the legislature. (Amended by vote of the people November 7, 2001.)

Powers and duties of legislature; home rule powers of local

governments; statute of local governments.

§2. (a) The legislature shall provide for the creation and organization of local
governments in such manner as shall secure to them the rights, powers, privileges
and immunities granted to them by this constitution.
(b) Subject to the bill of rights of local governments and other applicable
provisions of this constitution, the legislature:
(l) Shall enact, and may from time to time amend, a statute of local
governments granting to local governments powers including but not limited to
those of local legislation and administration in addition to the powers vested in
them by this article. A power granted in such statute may be repealed, diminished,
impaired or suspended only by enactment of a statute by the legislature with the
approval of the governor at its regular session in one calendar year and the re-
enactment and approval of such statute in the following calendar year.
(2) Shall have the power to act in relation to the property, affairs or
government of any local government only by general law, or by special law only
(a) on request of two-thirds of the total membership of its legislative body or on
request of its chief executive officer concurred in by a majority of such
membership, or (b) except in the case of the city of New York, on certificate of
necessity from the governor reciting facts which in the judgment of the governor
constitute an emergency requiring enactment of such law and, in such latter case,
with the concurrence of two-thirds of the members elected to each house of the
(3) Shall have the power to confer on local governments powers not relating
to their property, affairs or government including but not limited to those of local
legislation and administration, in addition to those otherwise granted by or
pursuant to this article, and to withdraw or restrict such additional powers.
(c) In addition to powers granted in the statute of local governments or any
other law, (i) every local government shall have power to adopt and amend local
laws not inconsistent with the provisions of this constitution or any general law
relating to its property, affairs or government and, (ii) every local government shall
have power to adopt and amend local laws not inconsistent with the provisions of
this constitution or any general law relating to the following subjects, whether or
not they relate to the property, affairs or government of such local government,
except to the extent that the legislature shall restrict the adoption of such a local

- 34 -
law relating to other than the property, affairs or government of such local
(l) The powers, duties, qualifications, number, mode of selection and
removal, terms of office, compensation, hours of work, protection, welfare and
safety of its officers and employees, except that cities and towns shall not have
such power with respect to members of the legislative body of the county in their
capacities as county officers.
(2) In the case of a city, town or village, the membership and composition of
its legislative body.
(3) The transaction of its business.
(4) The incurring of its obligations, except that local laws relating to
financing by the issuance of evidences of indebtedness by such local government
shall be consistent with laws enacted by the legislature.
(5) The presentation, ascertainment and discharge of claims against it.
(6) The acquisition, care, management and use of its highways, roads,
streets, avenues and property.
(7) The acquisition of its transit facilities and the ownership and operation
(8) The levy, collection and administration of local taxes authorized by the
legislature and of assessments for local improvements, consistent with laws
enacted by the legislature.
(9) The wages or salaries, the hours of work or labor, and the protection,
welfare and safety of persons employed by any contractor or sub-contractor
performing work, labor or services for it.
(10) The government, protection, order, conduct, safety, health and well-
being of persons or property therein.
(d) Except in the case of a transfer of functions under an alternative form of
county government, a local government shall not have power to adopt local laws
which impair the powers of any other local government.
(e) The rights and powers of local governments specified in this section
insofar as applicable to any county within the city of New York shall be vested in
such city. (Amended by vote of the people November 7, 2001.)

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