Case 1:19-cv-00920-DNH-CFH Document 51 Filed 09/19/19 Page 1 of 14

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
NEW YORIZ IMMIGRATION COALITION
COMMON CAUSE/NEW YORK, COMMUNITY
VOICES HEARD, CITIZEN ACTION OF NEW YORI(,
and JENIFER BENN,
Plaintiffs,

Civil Case No.:

-againstRENSSELAER COUNTY BOARD OF ELECTIONS;
JASON SCHOFIELD, in his official capacity as
Commissioner of Rensselaer County Board of Elections;
STEVEN MCLAUGHLIN, in his official capacity as
Rensselaer County Executive; FRANK MEROLA, in his
official capacity as Rensselaer County Clerk; and
MICHAEL STAMMEL, in his official capacity as
Chairperson of the Rensselaer County Legislature,

1:19-cv-00920
DNH/CFH

Defendants.

MEMORANDUM OF LAW IN FURTHER SUPPORT
OF DEFENDANTS' MOTION
PURSUANT TO FRCP 12(b)(l) and 12(b)(6)

DATED:

September 19, 2019
April J. Laws, Esq. Bar No: 517148
Attorneys for Defendants
JOHNSON & LAWS, LLC
648 Plank Road, Suite 204
Clifton Park, New York 12065
Tel:
518-490-6428
Fax: 518-616-0676
Email: ajl@johnsonlawsllc.com

 Case 1:19-cv-00920-DNH-CFH Document 51 Filed 09/19/19 Page 2 of 14

TABLE OF CONTENTS

PRELIMINARY STATEMENT ..................................................................................................... 1
POINT I -

BECAUSE OF PLAINTIFFS' LACK OF STANDING,
THEIR CLAIMS MUST BE DISMISSED AS A
MATTER OF LAW ................................................................................................. 2

POINT II-

PLAINTIFFS' CLAIMS ARE NOT RIPE FOR
ADJUDICATION EXERCISE mRISDICTION .................................................... 4

POINT III -

THE COMPLAINT FAILS TO STATE VIOLATIONS
OF THE VOTING RIGHTS ACT OR SHOWS THE
REQUISITE "STATE ACTION" REQUIRED OF A
VIABLE SECTION 1983 CLAIM .......................................................................... 6

A.

Voting Rights Act .................................................................................................... 6

B.

42 U.S.C. Section 1983 ............................................................................................ 8

POINT IV - PLAINTIFFS' FAILURE TO PLEAD A MONELL CLAIM
REQUIRES DISMISSAL OF THE COMPLAINT ................................................. 9
CONCLUSION .............................................................................................................................. 10

 Case 1:19-cv-00920-DNH-CFH Document 51 Filed 09/19/19 Page 3 of 14

TABLE OF AUTHORITIES
Page(s)
Cases

Brandon v. Holt,
469 U.S. 464 (1985) ................................................................................................................. 10
Damon v. Hukowicz,
964 F. Supp. 2d 120 (D. Mass. 2013) ........................................................................................ 6
Davis v. Garcia,
2008 U.S. Dist. LEXIS 82204 (S.D.N.Y. 2008) ........................................................................ 7
Dekom v. Nassau County,
595 Fed. Appx. 12 (2d Cir. 2014) .............................................................................................. 7
DOC v. New York,
US
139 S Ct 2551 (2019) .............................................................................................. 3
Hoblock v. Albany County Bd. of Elections,
422 F.3d 77 (2d Cir. 2005) ......................................................................................................... 7
Hulettv. City of Fowler,
253 F.Supp. 3d 462 (N.D.N.Y. 2017) ...................................................................................... 10
Hunt v. Wash. State Apple Advertising Comm 'n,
432 U.S. 333 (1977) ................................................................................................................... 4
Knight First Amend. Inst. at Columbia Univ. v. Trump,
928 F.3d 226 (2d Cir. 2019) ................................................................................................... 8, 9
Koziol v. Hanna,
107 F. Supp. 2d 170 (N.D.N.Y. 2000) ....................................................................................... 4
LULAC v. Public Interest Legal Found.,
2018 U.S. Dist. LEXIS 136524 (E.D. Va. 2018) ....................................................................... 6
Monell v. New York City Dep 't ofSoc. Serv.,
436 U.S. 658 (1978) ............................................................................................................. 9, 10
Nat'! Org. for Marriage, Inc. v. Walsh,
714 F.3d 682 (2d Cir. 2013) ....................................................................................................... 5
New York v. US. Dept. of Comm.,
315 F.Supp 3d 502 (SDNY 2019) ............................................................................................. 3
ii

 Case 1:19-cv-00920-DNH-CFH Document 51 Filed 09/19/19 Page 4 of 14

Olagues v. Russoniello,
770 F.2d 791 (9th Cir. 1985) ..................................................................................................... 7
Rivendell Winery, LLCv. Town ofNew Paltz,
725 F. Supp. 311 (N.D.N.Y. 2010) ............................................................................................ 5
Russoniello v. Olagues,
484 U.S. 806 (1987) ................................................................................................................... 7
Shannon v. Jacobowitz,
394 F.3d 90 (2d Cir. 2005) ......................................................................................................... 7
United States v. Classics,
313 U.S. 299 (1941) ................................................................................................................... 9
West v. Atkins,
487 U.S. 42 (1988) ..................................................................................................................... 9
Willingham v. County ofAlbany,
593 F. Supp. 2d 446 (N.D.N.Y. 2006) ....................................................................................... 7
Young Advocates for Fair Educ. V Cuomo,
359 F. Supp. 3d 215 (E.D.N.Y. 2019) ....................................................................................... 4
Federal Statutes
42 u.s.c. § 1983 ...................................................................................................................... 6, 8, 9

Fed. R. Civ. P 12(b) ................................................................................................................. 1, 2, 4
U.S. const. amend I .......................................................................................................................... 8
U.S. Const. amend XIV ................................................................................................................... 8

Voting Rights Act (52 U.S.C. § 1010l(b)) ..................................................................................... 7
Voting Rights Act (52 U.S.C. § l0307(b)) ..................................................................................... 7

iii

 Case 1:19-cv-00920-DNH-CFH Document 51 Filed 09/19/19 Page 5 of 14

PRELIMINARY STATEMENT

Defendants, Rensselaer County Board of Elections (hereinafter referred to as "County"),
Jason Schofield, Steven McLaughlin, Frank Merola, and Michael Stammel (collectively refe1Ted
to as "County Defendants"), by and through their counsel (Johnson & Laws, LLC), submit this
reply memorandum in further supp01i of the County Defendants' Rule 12(b) motion to dismiss
Plaintiffs' Complaint (Dkt. No. 1) in its entirety.
On opposition, other than e1rnneously refen'ing to the July 18, 2019 press release as a
"policy", Plaintiffs remain unable to save the Complaint from dismissal since, other than relying
on mere speculation, the Complaint contains no factual allegations that the County Defendants
took any state action, i.e., passing a law, passing a resolution, and/or establishing a formal policy. 1
In fact, Plaintiffs admit that they are seeking remedies from this Couti not in light of actual or
paiiicularized injuries suffered by Plaintiffs, but "out of fear of the potential consequences for
them or their loved ones." (Dkt No. 44 at 13) (emphasis supplied). Finally, Plaintiffs now confirm
that the Complaint does not contain any factual allegation that County Defendants actually took
an action or refrained from taking actions they were required by law to take, which implicate any
'

of the federal rights Plaintiffs allege were violated. For these reasons, the Complaint must be
dismissed as a matter of law.

1
In fact, even though they have only sued the individually named County Defendants in their official capacities,
Plaintiffs admit that "Defendants hatched and announced the County's new policy without any consideration,
consultation, or study by the Board of Elections." (Dkt. No. 44 at 12) (emphasis supplied). Plaintiffs' own
admissions in this regard demonstrate that there was no such "policy," merely public statements made by individually
named County Defendants regarding a July 18, 2019 press release.
1

 Case 1:19-cv-00920-DNH-CFH Document 51 Filed 09/19/19 Page 6 of 14

POINT I
BECAUSE OF PLAINTIFFS' LACK OF STANDING,
THEIR CLAIMS MUST BE DISMISSED AS A MATTER OF LAW
Plaintiffs opposition arguments explicitly show that neither Plaintiff Benn nor the

organizational Plaintiffs have standing to pursue the claims made in the Complaint. On opposition,
Plaintiff Benn claims that although she is "eligible to register to vote," upon her election "she has
not yet updated the address on her driver's license since moving to Rensselaer County" because
"through her community work, Ms. Benn heard about defendants' plan to send all DMV
registrations to ICE.

Ms. Benn's family members include a naturalized citizen and a legal

permanent resident" (Dkt. No. 44 at 14). Plaintiff Benn claims that she is subjectively afraid for
the welfare of those legal family members because Plaintiff Benn "is aware that ICE often
mistakenly identifies naturalized citizens, legal permanent residents, and even U.S.-bom citizens,
as undocumented persons, and wrongfully subjects them to detention and removal proceedings."
(Id.). In opposition, the organizational Plaintiffs claim that, although they are advocacy groups,
they "must spend additional resources registering people [to vote] who otherwise would have
registered through the DMV as well as to overcome voter intimidation and fear." 2 (Id. at 18)
(emphasis omitted). Even though the facts asserted in the Complaint and the admissions made in
opposition to County Defendants' motion make clear that Plaintiffs have not suffered an injury in
fact as a result of the July 18, 2019 press release, Plaintiffs attempt to manufacture standing with
"six degrees of separation" allegations, such as claims that "mixed immigration ... families often
refuse to contact authorities even when they are victims of serious crimes" or by alleging that there
are "numerous examples of ICE detentions of citizens and non-citizens who are legally present in

Interestingly, Plaintiff do not state whether their sole individual Plaintiff (Ms. Benn) or any members of her family
are one of those to which organizational Plaintiff represent as actual members of their organization.

2

2

 Case 1:19-cv-00920-DNH-CFH Document 51 Filed 09/19/19 Page 7 of 14

the United States" which Plaintiffs contend create an environment of "intimidation ... more than
sufficient to establish" standing (Id. at 15). 3 Although compelling, these arguments are insufficient
as a matter of law.
Remarkably, however, Plaintiffs concede that they: 1) have no direct relation to the content
of the press release; 2) the press release did not reference Plaintiff Benn, her relatives with legal
status to remain in the United States, or identified groups or individuals that Plaintiff organizations
serve (as they are either educational or advocacy groups); 4 3) Plaintiff Benn admits that she meets
all qualifications to lawfully register to vote in Rensselaer County; and 4) Plaintiffs have not shown
that they would be directly impacted by their fears, assumptions and speculation. Simply stated,
Plaintiffs have not made a showing of any imminent or particularized injury, nor have they
presented any allegations to support that the July 18, 2019 press release led to any particularized
mJury.
As this Court has previously opined, in order to sustain an injury that gives rise to standing,
a plaintiff must have an injury in-fact, which must be particularized and concrete, and imminent

In supp01t of this claim, Plaintiffs cite to New York v. U.S. Dept. of Comm., 315 F.Supp 3d 502 (SDNY 2019).
However, the instant case is plainly distinguishable as Plaintiffs' there alleged that they would suffer, among other
things, loss of federal funds, degradation of census data, and diversion of resources. See, also, DOC v. New York,
_US_, 139 S Ct 2551 (2019) (finding standing for Plaintiffs in light of their patticularized injuries and noting
that claims of future injuries can only provide standing "if the threatened injury is ce1tainly impending, or there is a
substantial risk that the harm will occur.")(citation omitted). Plaintiffs here, however, have made no such showing
of particularized harm, as opposed to speculative future harm from a third-patty, i.e, ICE, that is neither "ce1tainly
impending" nor shows that Plaintiffs are at a substantial risk of harm.
4 New York Immigration Coalition's website states that "NYIC advocates for laws and policies to improve the lives
of immigrants and all New Yorkers, particularly those that live in lower income communities."
(https://www.nyic.org/about-us/what-we-do). Common Cause/New York's website advocates that "[a]t Common
Cause New York, we're committed to protecting and expanding the freedom to vote for every eligible New Yorker."
(https://www.c01mnoncause.org/new-york/our-work/voting-elections). Community Voices Heard advocates in its
website that, since 1994, they have been "working to build a society in which the systems that govern foster racial,
social and economic justice not exploitation
particularly for low-income people of color."
(https://www.cvhaction.org/what-we-do). Finally, Citizen Action of New York's identifies itself as a "grassroots"
organization seeking social change by "look[ing] for opp01tunities to accomplish big changes - not small, incremental
reforms. We work to elect progressive candidates to office who are committed to these issues."
(https ://c itizenactionny. org/about).
3

3

 Case 1:19-cv-00920-DNH-CFH Document 51 Filed 09/19/19 Page 8 of 14

(as opposed to hypothetical). Koziol v. Hanna, l 07 F. Supp. 2d 170, 176 (N.D.N.Y. 2000).
Moreover, the conduct complained of must cause the injury (as opposed to hypothetical injuries
from a third-paiiy such as ICE) and the injury would be redressed by a favorable comi decision.

Id. The requirements for organizational standing are the same as those for an individual plaintiff.
Young Advocates for Fair Educ. V Cuomo, 359 F. Supp. 3d 215 (E.D.N.Y. 2019)(holding that a
diversion of resource theory is not enough to supp01i standing that fmiher opining that an
organization that finds a statute, policy or law "politically or socially disagreeable" is likewise
insufficient). Here, since Plaintiff have not and cannot show that they suffered an injury in-fact
(since their alleged injury is clearly speculative and does not relate to any portion of the content of
the July 18, 2019 press release), this Court is unable to redress any alleged injury. 5 As such,
Plaintiffs lack standing and County Defendants' Rule 12(b) motion to dismiss must be granted as
a matter of law.
POINT II
PLAINTIFFS' CLAIMS ARE NOT RIPE FOR ADJUDICATION

Since Plaintiffs remain unable to demonstrate an actual or imminent injmy as a result of
the July 18, 2019 press release, the Complaint is clearly not ripe for adjudication. Plaintiffs argue
that there is prudential ripeness for the allegations contained in the Complaint. In order attempt to
convince this Comi of same, Plaintiffs repeatedly refer to the July 18, 2019 press release as a

Plaintiffs claims of"associational standing" likewise fail. Under the three-prong standard laid out by the Supreme
Court in Hunt v. Wash. State Apple Advertising Comm 'n, 432 U.S. 333, 343 [1977]), Plaintiffs are unable to identify
a member of their respective organizations to have ever been injured by the July 18, 2019 press release, that the
alleged interests at stake as a result of the July 18, 2019 press release are the interests which are germane to each of
the organizational Plaintiffs' purpose, nor that the allegations of the Complaint (nor the reliefrequested therein)
requires participation of the organization's individual members. As to the third prong, in order for organizational
Plaintiffs to show that the July 18, 2019 press release has intimidated its members from registering to vote, they
must show the coercive effect of the press release. Accordingly, Plaintiffs are unable to establish associational or
representative standing.

5

4

 Case 1:19-cv-00920-DNH-CFH Document 51 Filed 09/19/19 Page 9 of 14

County "policy" or "action." As noted in Defendants' original moving papers, the July 18, 2019
press release is not a policy, nor does it constitute "state action" as the press release was not
promoted by any new County Law, County resolution or County policy (Dkt. No. 34-1 if3).
Accordingly, Plaintiffs are unable to show that the claims made in the Complaint are ripe for
adjudication.
As explained in County Defendants' moving papers, contrary to Plaintiffs' contentions,
there is no ripe controversy. Although Plaintiff Benn claims that she is subjectively "fearful" of
registering to vote at the DMV, for the reasons stated above, her claims fall short of the
requirements that she demonstrate that she has, in fact, suffered a particularized injury. Similarly,
organizational Plaintiffs raise nothing more than public policy arguments, which fail to give this
Comi subject matter jurisdiction. Nat'! Org. for Marriage, Inc. v. Walsh, 714 F.3d 682 (2d Cir.
2013). Therefore, at a minimum, this Couti should dismiss the Complaint without prejudice to
allow Plaintiffs to re-asses such claims in the event that they become ripe. See, Rivendell Winery,
LLC v. Town ofNew Paltz, 725 F. Supp. 311, 317-19 (N.D.N.Y. 2010).

Although Plaintiffs claim that there is both constitutional and prndential ripeness, the plain
language of the Complaint and Plaintiffs' opposition papers show otherwise. First, as discussed
further below, Plaintiffs cannot and have not shown proof of intent to intimidate. Second, the
Complaint does not allege that Plaintiff Benn had any contact with the County DMV office, Board
of Elections or any of the individually named County Defendants. Third, the Complaint fails to
allege that, since the July 18, 2019 press release, the County Board of Elections or any of the
individually named County Defendants sent information to ICE. Fomih, organizational Plaintiffs
have not alleged that anyone residing within the County who is lawfully registered to vote at a
DMV office had contact with ICE as a result of the July 18, 2019 press release. Simply stated,

5

 Case 1:19-cv-00920-DNH-CFH Document 51 Filed 09/19/19 Page 10 of 14

there is absolutely no evidence or factual allegation that the contents of the July 18, 2019 press
release violated the Voting Rights Act, or the First or Fourteenth Amendments. Thus, Plaintiffs
have not and cannot show an injury that is actual or imminent, nor that the issues discussed in the
Complaint are ripe for adjudication since the Complaint fails to show actual injury or hardship to
the Plaintiffs. Thus, the absence of a ripe controversy compels dismissal of Plaintiffs' Complaint
as a matter of law.
POINT III
THE COMPLAINT FAILS TO STATE VIOLATIONS OF
THE VOTING RIGHTS ACT OR SHOWS THE
REQUISITE "STATE ACTION" REQUIRED OF
A VIABLE SECTION 1983 CLAIM

As explained fully in County Defendants' original moving papers, the July 18, 2019 press
release neither violated the Voting Rights Act or constituted state action sufficient to satisfy the
requirements of a Section 1983 action. Thus, the Complaint must be dismissed.

A.

Voting Rights Act

Plaintiffs argue in opposition that they are not required to allege any facts demonstrating
specific intent under the VRA (Dkt. No. 44 at 22-24). To attempt to suppmi this theory, Plaintiffs
rely solely on a single, non-binding case in the Eastern District of Virginia (id. at 22); LULAC v.
Public Interest Legal Found., 2018 U.S. Dist. LEXIS 136524 (E.D. Va. 2018). Plaintiffs analysis

here is misguided, however, as even LULAC underscored the importance of comis adhering to
binding precedent when analyzing a claim under the VRA. See LULAC, 2018 U.S. Dist. LEXIS
136524 at *9 ("Therefore, in the absence of plain statutory text ... or binding case law to the
contrary .... "). Moreover, LULAC relied upon Damon v. Hukowicz, 964 F. Supp. 2d 120, 149 (D.
Mass. 2013)-a case where a showing of specific intent was required-in LULA C's analysis of a
VRA section 1 l(b) claim. As such, LULAC is neither relevant nor controlling in the instant matter.
6

 Case 1:19-cv-00920-DNH-CFH Document 51 Filed 09/19/19 Page 11 of 14

In opposition, Plaintiffs are asking that this Comi disregard applicable statutory authority

and binding caselaw and, instead, adopt the noncontrolling decision of one Eastern District of
Virginia case (Dkt. No. 44 at 22). 6 Critically, Plaintiffs ignore the germane text of the Voting
Rights Act itself, which reads: "no person, whether acting under color of law or otherwise, shall
intimidate, threaten, coerce ... for the purpose ofinterfering ·with the right of such other person to
vote .... " See 52 U.S.C. § 1010l(b). While this language was omitted in 52 U.S.C. § 10307(b),
such remains the law with respect to general voting rights, and such has been the governing
authority for recent cases within the Second Circuit that have all held that specific intent is indeed
a mandatory requirement under the VRA. 7 See e.g., Willingham v. County ofAlbany, 593 F. Supp.
2d 446, 462 (N.D.N.Y. 2006) (holding section ll(b) of the VRA protects "against conduct

intended to intimidate, threaten, or coerce."); Dekom v. Nassau County, 595 Fed. Appx. 12, * 15
(2d Cir. 2014). Additional binding caselaw has buttressed the conclusion that specific intent is, in
fact, a requirement in the context of a VRA claim. See Shannon v. Jacobowitz, 394 F.3d 90, 96
(2d Cir. 2005); Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 97 (2d Cir. 2005); Davis

v. Garcia, 2008 U.S. Dist. LEXIS 82204, *13-14 (S.D.N.Y. 2008). 8 Accordingly, Plaintiffs theory
with respect to the VRA's specific intent requirement must be rejected as a matter oflaw.
Finally, Plaintiffs' alternative argument that they have adequately plead facts
demonstrating Defendants acted with the requisite specific intent to maintain a section 11 (b) VRA

Plaintiffs have not cited to a single case within the Second Circuit that has held that specific intent is not a requirement
in a claim advanced under the Voting Rights Act.
7
Notably, Plaintiffs erroneously alleges that Olagues v. Russon;el!o, 770 F.2d 791, 804 (9th Cir. 1985) was vacated
as moot (Dkt. No. 44 at 22). However, Olagues was vacated on other grounds that did not invalidate its holding with
respect to the relevant VRA claim-i.e., that specific intent is an absolute requirement under the VRA. See
Russon;e!lo v. Olagues, 484 U.S. 806 (1987).
8
Plaintiffs concedes in opposition that controlling authority in this Circuit has held that specific intent is a requirement
in a claim under the Voting Rights Act (Dkt. No. 44 at 22). Plaintiffs argument in opposition to this undisputed fact
is merely that such cases were "wrongly decided and should not be followed" (M.).
6

7

 Case 1:19-cv-00920-DNH-CFH Document 51 Filed 09/19/19 Page 12 of 14

claim must fail, as the Complaint alleges nothing more than purely conclusory and speculative
allegations relating to Defendants "intent." To that end, Plaintiffs rely upon their allegations that
"[t]he purpose and predictable effect of this conduct is to intimidate" (Dkt. No 376 at

,r

1)

(emphasis added), and "[o]n information and belief, Defendants intend the natural and probable
consequences of their actions" (id. at ,r 70) (emphasis added). Here, Plaintiffs have clearly failed
to plead a single fact illustrating that Defendants possessed the requisite specific intent to
intimidate any eligible voters from registering to vote in Rensselaer County and, therefore,
Plaintiffs have failed to allege a plausible claim for relief.
B.

42 U.S.C. Section 1983

Plaintiffs remain unable to support their First and Fourteenth Amendment claim. Again,
in an attempt to stave off dismissal of the Complaint, Plaintiffs repeatedly refer to the July 18, 2019
press release as a "policy." As stated above, and in County Defendants original moving papers,
the press release was not a "policy" as it related to public comments uttered by County Defendants
who were exercising their First Amendment rights. There can be no doubt that the July 18, 2019
press release contained protected speech, that had no force of law and was not made pursuant to
County legislative action. In fact, the Complaint acknowledges that the press release was neither
official or final - admissions that Plaintiffs now seek to distance themselves from.
Furthermore, Plaintiffs reliance upon Knight First Amend. Inst. at Columbia Univ. v.

Trump, 928 F.3d 226, 235-36 (2d Cir. 2019) is misguided. The Knight Plaintiffs were social media
users who were blocked from accessing and interacting with the Twitter account of President
Trump because they expressed views on his social media page that he disliked. Unlike in Knight,
no conduct was taken by County Defendants to "ban" or otherwise exclude Plaintiffs. To the
extent that Plaintiffs are attempting to argue that posts on a social media account alone constitute

8

 Case 1:19-cv-00920-DNH-CFH Document 51 Filed 09/19/19 Page 13 of 14

"state action," i.e., the County's distribution of the press release on Facebook, that was not an issue
before the Second Circuit on Knight and Plaintiffs are unable to offer any legal precedent that
stands for that proposition. Similarly, Plaintiffs claims that County Defendants "misused their
office" and therefore have taken action "under color of state law" is likewise mistaken. Again,
Plaintiffs cite to distinguishable cases, i.e., where the Defendants were commissioners of elections,
who were charged with conspiring to willfully alter and falsely count and ce1iify the ballots of
votes cast in a state primary election. United States v. Classics, 313 U.S. 299 (1941). Here, there
are no allegations in the Complaint that County Defendants have "abused the position given to
[them] by the State" (West v. Atkins, 487 U.S. 42, 49-50 [1988]); in fact that language appears
nowhere in the Complaint.

Instead, the facts of the Complaint simply show that County

Defendants have merely asse1ied their opinions on and outlined a potential plan that is lawful in
all respects. Thus, Plaintiffs' Complaint fails to include any well-plead factual allegations of any
"state action" by County Defendants that could suppmi a § 1983 claim.
POINT IV
PLAINTIFFS' FAILURE TO PLEAD A MONELL CLAIM
REQUIRES DISMISSAL OF THE COMPLAINT
Other than the Plaintiffs repeatedly labeling the July 18, 2019 press release as a "policy",
they remain unable to identify an official policy that would suppmi any claim plead under Monell.
In fact, Plaintiffs concede that they have not brought a cause of action under Monell (Dkt. No. at
30). Moreover, assuming, arguendo, that this Court deems the July 18, 2019 press release to
constitute a policy under Monell, as plead, the Complaint infers that the press release was not
unlawful, nor has it causally related to any injury Plaintiffs' have suffered or will imminently
suffer. As previously discussed in County Defendants' original moving papers, the July 18, 2019
press release has no force of law, nor was it made pursuant to any official action by the County
9

·

 Case 1:19-cv-00920-DNH-CFH Document 51 Filed 09/19/19 Page 14 of 14

legislature. The arguments that the July 18, 2019 press release could influence voter registration
is absurd, as the County Defendants do not administer or control voter registration information
(see, Dkt. No. 34-1). Moreover, the disclosure of information discussed within the July 18, 2019

press release was already available to the public - and law enforcement - since at least 1977.
Finally, Plaintiffs have not and cannot allege that, pursuant to the press release or any other County
policy, that those lawfully able to register to vote and residing in the County have had their
publicly-available information shared with law enforcement, or that the public accessibility to this
information has changed since July 18, 2019. Accordingly, the Complaint must be dismissed as a
matter oflaw. 9

CONCLUSION
WHEREFORE, it is respectfully requested that the Court: (a) dismiss Plaintiffs' Complaint
as against all County Defendants; and (b) grant such other and further relief in the County
Defendants' favor as this Comi deems just and proper.
Dated: August 19, 2019

Respectfully submitted,

ApvwJ. Law~
April J. Laws
SIGNED IN ABSENCE OF WRITER TO A VOID DELAY

Bar Number 517148
Attorneys for County Defendants
JOHNSON & LAWS, LLC
648 Plank Road, Suite 204
Clifton Park, New York 12065
Tel:
518-490-6428
Fax: 518-616-0676
Email: ajl@jolmsonlawsllc.com
9

Finally, on opposition, Plaintiffs' have acknowledged that they do not have a viable claim for punitive damages
against any of the County Defendants (Dkt. No. 44 at 33). Furthermore, since Plaintiffs' have now confirmed that
the are suing Messrs. Schofield, McLaughlin, Merola and Stammel in their individual capacities only, the only
properly named Defendant is the County. Monell v. New York City Dep 't ofSoc. Serv., 436 U.S. 658,690 (1978);
Brandon v. Holt, 469 U.S. 464, 471-72 (1985); Hulettv. City of Fowler, 253 F.Supp. 3d 462, 498-99 (N.D.N.Y.
2017). Thus, to the extent that this Court does not dismiss the Complaint as a matter of law, the caption must be
amended to reflect the only proper Defendant: "RENSSELAER COUNTY AND ITS BOARD OF ELECTIONS".
10