strunk's 2nd circuit t1080 08-4323-cv motion w attachments for errata brief 08-4323-cv stamped...

8/14/2019 Strunk's 2nd Circuit T1080 08-4323-cv Motion w Attachments for Errata Brief 08-4323-cv Stamped Received

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UNITED STATES COURT OF APPEALS FO R THE SECOND CIRCUITThurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500IMOTION INFORM ATION ST ATEMEN T

08-43234~ Caption f us e short title]Loeber et al. v .Spargo et al.otion for: Permission to fib enala correctionsto Awellant Brief

corrections to Appellant Brief filedJanuary4.2010 includingto 14 point print size with certiiicatbnd onformanceunderFPApR;and

for a Appeal panelwhoam God-fearingJudges rather than Qnqsticandor non-believerscase S t ~ n k USPS et al. 08-3242- on he same day as they are related.

. -ING PARTY: OPPO SING PARTY: The State of New York 7Plaintiff Defendant P 0I' Appellant/Petitioner AppelleetRespondent cn CPOV ING A m O W Y : Christopher-Earl: Stnmk in esse OPPOSING ATTORNEY: AARONM. BALDWIN, Assistant Attorney General. of C

[name o f attorney, with firm, ddress, phone number and em ail ]Me r-E ar l : Sbunk inesse The Ca~l to lAvenue- W281 Albany. New York 12224-0341

n New York 11238 Telephone: (518) 474-2913 Fax: (518) 473-1572901-6767 ernail: [email protected] Ernail: Aaron.BaldwlnBoag.state.ny.us

USDC of the Northern District of New York Decision and Order to Dismiss of Judge LawrenceE.Kahn In NDNY 04-12~-1193.priate boxes: FOR EMERGENCY M OTIONS, MOTIONS FOR STAYS ANDINJUNCTION S PENDING APPEAL:otified opposing counsel (required by Local Rule 27.1): Has request for relief been made below?$yes 0 O (explain): Has this relief been previously sough t in this Court? YesRequested return date and explanation o f emergency:position on motion:Unopposed ~ ~ p o s e d w ~ o n ' tno w

sing counsel intend to i r k p o n s e :Yes NO WD0n. t Know

oral argument on motion requested? U Y e s U N o (requests for oral argument will not necessarily be granted)f appeal been set? a y e s N o I f y es, e nter d ate :

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

ORDERHEREBY ORDERED THA T the motion is GRANTED DENIED.

FOR THE COURT:CATHERINE O'HAGAN WOLFE, Clerk of Court

By:

T-1080


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STRUNKS DECLARATION IN SUPPORT OF THE T1080 MOTION

REQUEST TO FILE AN ERRATA CORRECTION APPELLANT

BRIEF FOR 08-4323-CV, TO BE HEARD THE SAME DAY BEFORE

THE SAME PANEL AS IN 08-3242-CV

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

USC 1746:

1. Declarant is the Appellant/Petitioner herein Appeal CaseLoeber 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 motionrequestto 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 formattedin 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 AppealCase is scheduled for January 15, 2010 and hereby is requested to be

coordinated for a different date at the Courts choosing, in that Declarant is

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

4323-cv.

- 1 -


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5. Declarant has spoken with Appellants, H. William: Van-Allenin esse, and John-Joseph: Forjone in esse who are all members of THE AD

HOC NYS (New York State) CITIZENS FOR CONSTITUTIONAL

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 ofthe 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

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 CONSTITUTION.

8. That Declarants inalienable rights are given byAlmighty Godnot 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

- 2 -


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temporal power in provision of rights, whose one world temporal andspiritual leader over all men contrary to requirements of the Declaration ofIndependence of July 4, 1776 thereafter incorporated into each Constitutionof the founding colonies including the April 20, 1777 New YorkConstitution, that thereafter broke with King George 111.

9. Declarant as a matter of epistemological proof and logic, knowsas to his 9'h amendment right that there is no possible way Appellant(s) mayobtain a fair hearing without a Judge(@dedicated to Almighty Godfor ourfieedom and the Original Constitution, and which is diametrically opposedto the Jesuit Doctrine of "Social Justice " hat has permeated the Courtsystem and governance since 1868 and is synonymous with theunconstitutional heresy of the "the Living Constitution".

Respectfilly submitted and certified to be true under penalty ofperjury

Dated: January 8,2010Brooklyn, New York593Vanderbilt Avenue - #281Brooklyn., New York 11238(845) 90 1 6767 .Email: [email protected]


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U.S. ourt o f Appeals for the Second Circuit in re Appeal Case 08-4323-cvCER'TIFICrtTE OF SER VIC E

On January 1 1,2010. I, Christopher Earl Strunk, under penalty of pe ju ry with 28 USC fj1746caused the service of seven co mplete sets of the errata corrections to Appellant Brief endorsedJanuary 5,201 0, and o ne copy of the Appendix to the DOJ w ho made an appearance; and withseven sets of the TI08 0 Motion with supporting declaration to file the errata brief signed January 8,20 10 pursuant to the Sched ule upon counsels to Appellees by placing each com plete package in aproperly addressed envelope with proper postage fo r delivery by the U nited States Postal Service asfollows:AARON M. BALDWIN Kimberly A. Galvin, Esq.Assistant Attorney Genera l of New York New York State Board of ElectionsThe Capitol 40 Steuben St.Albany, New York 12224-0341 Albany ,NY , 2207TH E CITY OF NEW YORKCorporation Counsel Michael C ardozoNYC Law Department100 Church StreetNew York, NY 10007JAMES E. LONG, ESQ.668 C entral AvenueAlbany, New York 12206JAM ES E. KONSTANTY, ESQ.Konstanty Law Office252 Main StreetOneonta, NY 13820

W A N . KIMUnited States Attorney AssistantAttorney GeneralCivil Rights DivisionU.S. Depa rtment of JusticeRoom 7254--NWB950 Pennsylvan ia Avenue,WU) 0was hingtin, D.C. 20530 r-

- R0 p.D,cs zz/eter A. No rling Esq. , -U.S. Attorney's O ffice, r 5 c . ' ;,,-5 -Eastern District of New Y o r k -,,I Pie mp ont Plaza, Att: Ms. -- "Brooklyn ,NY , 1201 oP r Q \J-!I do declare and certify under penalty o f perjury:

Dated: January 1 I, 20 10Brooklyn, New York593 ~a nd er bi l t venue - #28 1

. Brooklyn., New York 1 1235(845) 901-6767 Email: chrisG$strunk.ws


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United States Court Of AppealsFor The Second CircuitRonald G. Loeber, et al.

Plaintiffs,

H. William Van Allen, John-Joseph Fodo ne , Christopher Earl S p n k ,m -s

Plaintiffs-Appellants,v.

Thom as J. Spargo, et al.Defendants-Appellees

On Appeal fiom the United States District Court for the Northern D istrict of New York D ecision .and O rders of Lawrence E. Kahn, District Court Judge in Case No. 04 Civ. 1193---APPELLANT BRIEF(Errata Corrections)

THE AD HOCNYS CITIZENS FOR Christopher-Earl: Strunk in esseCONSTITUTIONAL LEGISLATIVE self-represented wlo being an attorneyREDISTRICTING . 593 Vanderbilt Avenue -#28135 1 North Road Brooklyn, New York 11238Hurley,NY 12443 (845).90 1-6767 email: chris@stru&.ws


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ii

APPELLANTS /PLAINTIFFS

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

PLAINTIFFS

Ronald G. Loeber

2130 Berne Altamont Road

Altamont, NY 12009

William E. Bombard

P.O. Box 882

Glens Falls, NY 12801

William A. Gage

10 Greenfield Lane

Hampton, NY 12837

Fairlene G. Rabenda

8 Claudia Lane

Poughkeepsie, NY 12603

Ronald E. Sacoff

84 Boylan Street

Staten Island, NY 10312

Gabriel Razzano

135 Gordon Place

Freeport, NY 11520

Edward M. Person, Jr.

392 Saldane Avenue

North Babylon, NY 11703

Burr V. Deitz

444 Whitehall Road

Albany, NY 12208

Roy-Pierre Detiege-Cormier

25 Hattie Jones Circle

Brooklyn, NY 11213

The Ad Hoc NYS Citizens for

Constitutional Legislative

Redistricting

351 North Road

Hurley, NY 12443


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APPELLEES DEFENDANTS:

ANDREW M. CUOMO

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

By: AARON M. BALDWIN

Assistant Attorney General, of Counsel

Telephone: (518) 474-2913

Fax: (518) 473-1572 (Not for service of papers)

Email: [email protected]

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


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iv

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, NYSAssemblywoman, 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,


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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, NYSAssemblyman, 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, NYSAssemblyman, 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.


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vi

KIMBERLY GALVIN, ESQ. ,

Special Counsel Attorney for

Defendants New York State Board of

Elections and Peter Kosinski

40 Steuben Street,

Albany, NY 12207

(518) 474-6236

Also representing by authority:

every Municipal Board of Elections,

along with every Corporation Counsel

of every Municipality with a Board of

Elections,

JAMES E. KONSTANTY, ESQ.Konstanty Law Office

252 Main Street

Oneonta, NY 13820

(607) 432-2245

For the Otsego County Board of

Elections,

MICHAEL A. CARDOZO, ESQ.

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

JAMES E. LONG, ESQ.

Bar Roll No. 506898

668 Central Avenue

Albany, New York 12206

(518) 458-2444

Representing the NATIONAL

ASSOCIATION OF SECRETARIES

OF STATE, "NASS", Leslie

Reynolds, Executive Director for the

Executive Committee,

WAN J. KIM

United States Attorney AssistantAttorney General

Civil Rights Division

U.S. Department of Justice

Room 7254--NWB

950 Pennsylvania Avenue, NW

Washington, D.C. 20530

(800) 253-3931

STATEMENT CONCERNING JURISDICTION

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.


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vii

TABLE OF CONTENTS

Page

STATEMENT CONCERNING JURISDICTION...vi

STATEMENT REGARDING ORAL ARGUMENT...x

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 Appellants letter .10

ISSUE 2: as to Rule 12 motion, in re plausibility standard11

ISSUE 3: Plaintiffs 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 unconstitutional18

ISSUE 7: Amended Complaint is a discernable reapportionment claim.18

ISSUE 8: constitutional question is not insubstantial with prior decisions.19

ISSUE 9: use ofBailey 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

WHAT IS A REPUBLICAN FORM OF GOVERNMENT...27

CONCLUSION.......................................................................................30

JURAT.....................................................................30

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . 31

APPENDIX with Index 8 pages and exhibits A-1 through A-217.


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viii

TABLE OF AUTHORITIES

Page(s)

CASES

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)...20Bethlehem 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)..5,19,22,28Barnett et.al. v. City of Chicago, et al., 97-2793 USCA 7

thCt. 141 F.3d 699 (1998)

Hines v. Davidowitz, 312 U.S. 52 (1940) ..26

Burns v. Richardson, 384 U.S. 73 (1966)

Davis v. Bandemer478 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 98-1665Alexander 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)..


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ix

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-63658

Williams v. Rhodes, 393 U.S. 23 (1968)

UNITED STATES CONSTITUTION

Article I Section 2 Electors qualification numerous branch of state legislatureArticle 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 StateArticle 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

NEW YORK STATE CONSTITUTION

The Original New York State Constitution of April 20, 1777...3,5The 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


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

FEDERAL STATUTES

28 U.S.C. 1291..................................................................vi1965 Voting Rights Act Section 5 review (VRA)..6,8,23,25,27,29Help 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

FEDERAL RULES2

ndCircuit 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)

RELATED CASES:

Rodriquez v Pataki - SDNY 02 cv 618 (28 USC 2284)Arbor Hill et. al. v. Albany Cty et.al. NDNY 03-cv-502 (NAM) / 2

ndCir 04-9132..1

Lopez Torres et al v. New York State BOE et al EDNY 04-cv-1129 (JG)1Forjone et al. v. California et al. in NDNY 06-cv-1002 (LEK)...1Strunk v USPS et al EDNY 08-cv-1744 / appeal 2

ndCircuit 08-3242-cv.1,2,6,8,9

Strunk v US DOC Bureau of Census et al DCD 09-cv-1295...1,30

CORPORATE DISCLOSURE STATEMENT & CERTIFICATE OF

INTERESTED PERSONS

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

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

STATEMENT REGARDING ORAL ARGUMENT

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.


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

1746 that:

INTRODUCTION

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

NYS (New York State) CITIZENS FOR CONSTITUTIONAL LEGISLATIVE

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


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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).

STATEMENT OF THE CASE

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 aBivens 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

1 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 Civilt 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 theencyclical,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


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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.

STATEMENT OF FACTS

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 encyclicalDeus 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. Thechurch'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 CouncilIustitia et Pax.


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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


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using an otherwise narrowly tailored Judicial Decision in WMCA andRodriguez

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,

1777.

4. That the NYSC requirement that the Peoples 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 caseRoserio v


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Rockefellerin 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. Strunks 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


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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


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he was in the McCarthys district when in fact he was in Kings 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, 9

th10

thand 14

thamendments 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


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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


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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).

QUESTIONS PRESENTED

ISSUE 1: Court failed to answer the interrogatories posed in the Appellants 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 Judges 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 byAlmighty Godnot 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 THISCONSTITUTION.

Declarants inalienable rights are given byAlmighty Godnot a man, men or

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


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Godfor 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 toAlmighty Godfor 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)


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ISSUE 3: Court erred in the matter of Plaintiffs 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

Justiciable;

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 thatfor Brooklyn (a/k/a Kings County) from April 2002 applies to

Declarants New York 18th

Senate District (SD) that is done differently for all SDs

within Brooklyn as with Declarants 57th

Assembly District and 11th


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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 Declarants 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 cannotbe 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

2 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 doesnot 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

process;


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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

inReynolds 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 countys 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

boroughs.

This article is primarily concerned with the effect of thereapportionment 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 forspecified 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


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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)


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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, havetwo 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 bethe 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


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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-examineits 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 presentpower 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


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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

throughBaker v. CarrandReynolds 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


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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 ofBailey 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.), affd, 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


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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 Declarants 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 Plaintiffs claims

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

Plaintiffs are precedingpro 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 Courts 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 Citys 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

(3)was among the constitutional reapportionment provisions declared

34. 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 ofsenate 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

decision.

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).

ARGUMENT

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

(VRA) combined with the Supremes decision inReynolds v. Sims, 377 U.S. 533

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


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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

4 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 Legislatures 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 isnt enforced for any district drawn in

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


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boundaries in New Jersey as reviewed in the case Karcher v. Daggettshould apply,

isnt 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 inBethlehem 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


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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.

InLuther 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


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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 inBaker v. Carr, despite its substantial curbing of the

political question doctrine, did not release it.

Similarly, inLuther 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 theRodriguez v. Pataki SDNY case


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

a republican form of government question raised first inLutherand then by the

dissenting Justice Felix Frankfurter inBaker 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 t

strunk's 2nd circuit t1080 08-4323-cv motion w attachments for errata brief 08-4323-cv stamped...

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