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FILED: ONONDAGA COUNTY CLERK 06/09/2023 12:02 PM INDEX NO. 005761/2023
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/09/2023
STATE OF NEW YORK
SUPREME COURT: COUNTY OF ONONDAGA
TOBIAS SHELLEY AS SHERIFF OF ONONDAGA
COUNTX
Index No.:2023/005761
Petitioner,
MEMORANDTIM
VS OF LAW
THE ONONDAGA COUNTY LEGISLATURE
AND THE COUNTY OF ONONDAGA,
Respondents.
PRELIMINARY STATEMENT
This is a petition under New York Civil Practice Law and Rules ("CPLR") 1003 for
declaratory judgment and Article 78 to find Onondaga County Local Law No. l-2023 invalid
and unenforceable. On February 7, 2023, the Onondaga County Legislature (the
"Legislature") passed Local Law No. 7-2023, which abolished, transferred, or curtailed the
Onondaga County Sheriffs power to: (1) operate, maintain, supervise, repar, provide
custodial care, and secure Jamesville Correctional Facility ("Jamesville Correctional") and;
(2) to appoint a chief deputy to oversee Jamesville Correctional. Under New York Municipal
Home Rule Law $ 23, such local laws are subject to mandatory referendum. Because Local
Law No. 7-2023 was not submitted for the approval of the Onondaga County electors via
mandatory referendum, it is invalid and unenforceable.
RELEVANT FACTS
Petitioner Tobias Shelley is the Sheriff of Onondaga Counry ("Sheriff Shelley").
(Affidavit of Tobias Shelley ["Shelley Aff "], fl 1). He was elected in the November 8,2022
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election and sworn in on December 27 ,2022. (Shelley Aff., flfl 2-3). SheriffShelley has served
as Onondaga County SheriffsinceJanuary 7,2023. (ShelleyAff, fl 3).
Onondaga County currently has two facilities that house inmates. (Shelley Aff, fl 5).
Jamesville Correctional Facility ("Jamesville Correctional"), also referred to as the Onondaga
County Correctional Facility, is Onondaga County's penitentiary. (Shelley Aff., fl 6). The
Patrick J. Corbett Justice Center ("Justice Center"), also known as the Onondaga County
Justice Center, is Onondaga County's jail. (Shelley Aff., fl 7). These two facilities serve
different purposes. Jamesville Correctional is a medium security facility that holds inmates
that have been convicted and sentenced for a crime and are serving out their sentence, while
the Justice Center is a maximum-security facility that houses individuals who have been
arrested, pre-trral detainees, and those who are awaiting transfer to a correctional facility.
(Shelley Aff., fl 10).
In 2017, Local Law No. l4-20L7 was enacted. The law transferred control of and
responsibility for Jamesville Correctional from the Onondaga County Executive to the
Onondaga County Sheriff. (Shelley Aff., fl 11, Ex. 1). Local Law No. 14-2017 was subject to
amandatory referendum and approved by the genenl electorate in the fall of 2017. (Shelley
Aff., fl 11, Ex. 1). Prior to the enactment of Local Law No. t4-2077, the Sheriff akeadyhad
responsibility for the operation, maintenance, supervision , repair, custodial care and security
of the Justice Center, as reflected in the Onondaga County Administrative Code
"Administrative Code"). (Shelley Aff., fl 12;2013 Onondaga County Administrative Code,
Article X, Section 10.02@)1 ["Exhibit 5"]).
I Pursuant to CPLR 4511, Petitioner need not request that the Court take judicial notice of local laws
and county acts. See also Brandes Meat Corp. v. Cromer, 146 A.D.2d 666, 667 (2dDept 1989) ("[T]his court may,
in general, take judicial notice of matters of public record. "); Rex Padng Corp. r'. White, 139 A.D.2d I7 6, 783 n.2
(3rd Dept 1988) ("[J]udicial notice may be taken of matters of public record[.]"). However, for the Court's
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Since assuming office on January l, 2023, Sheriff Shelley has had responsibility for
both Jamesville Correctional and the Justice Center in accordance with the Administrative
Code. (Shelley Aff., fl 13; Administrative Code, Article X ["Exhibit7"l). His responsibilities
for both facilities include, but are not limited to, the operation, maintenance, superyision,
rcpa:r and security of the facilities; and the housing, care, custody, and rehabilitation of all
inmates sentenced or assigned to such facilities. (Shelley Aff., fl 13; Exhibit 7, Article X,
Section 10.02(b), Section 10.04(bxi)).
On December 9, 2022, Sheriff Shelley first became aware of an initiative led by
Onondaga County Executive Ryan McMahon to close Jamesville Correctional. (Shelley Aff.,
fl 14). Such closure would involve ffansferring all Jamesville Correctional inmates and
Jamesville Correctional staff to the Justice Center, compliance with significant penitentiary
regulations, and negotiation with collective bargaintngunits. (Shelley Aff., fl 14). At no point
was Sheriff Shelley involved, included, or invited to participate in any discussion with the
Legislature or the County Executive on the plan or concept of closing Jamesville Correctional.
(Shelley Aff., T 15). Following Sheriff Shelley's election and three weeks prior to his
ssumption of office, he was asked to support the plan to close Jamesville Correctional.
(Shelley Aff., ,1T
15). He was still not provided with any information, rationale, or compliance
sffategy for such a course of action. (Shelley Aff., fl 15).
Onondaga County officials, without the input or approval of Sheriff Shelley,
unilaterally began the process of removing Sheriff Shelley's power to operate Jamesville
convenience, copies of the Administrative Code and Charter, current as of December 2013, have been attached
as Exhibits 5 and 6, respectively. Copies of the Administrative Code and Charter, current as of December 2017 ,
have been attached as Exhibit 7 and 8, respectively. The most current versions of the Administrative Code and
Charter, current through December 2019, contain no alterations to the cited provisions in Exhibits 7 and 8. Both
arc av ailable at http : / / www. o n gov. net / le gislature / .
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Correctional. On January 37, 2023, Sheriff Shelley attended a meeting of the Onondaga
County Ways & Means Committee where a local law was proposed that would strip Sheriff
Shelley of control of Jamesville Correctional. (Shelley Aff., li 16). At the meeting, First Chief
Deputy County Attorney Benjamin Yaus opined that the proposed local law did not require
a mandatory referendum because it was not altering the power of the Sheriff. (Shelley Aff.,
Ex.2 at 11). Shortly after this meeting, on February 7,2023, Local Law No. l-2023 was
passed. (Shelley Aff., Ex. 3). In Section 1, "Findings," of Local Law No. l-2023, the law
stated its passage was driven by "the resultant need for closure of the county penitentiary
facility [Jamesville Correctional]." (Shelley Aff., Ex. 3)'
Local Law No. 1-2023 strikes from the Onondaga Counfy Charter ("Charter") the
Iangvage grar.fting the Onondaga Counfy Sheriff the responsibility for and conffol over
Jamesville Correctional, langvage added by Local Law No. 74-20L7 via mandatory
referendum. (Shelley Aff., Ex. 3). It also strikes Section 10.04 from the Administrative Code,
which placed responsibility for "the operation, maintenance, supervision, repat, custodial
care and security of the Onondaga County penitentiary facility [Jamesville Correctional]" in
the hands of the Onondaga Counfy Sheriff. (Shelley Aff., Ex. 3). Local Law No. 7-2023, as
enacted by the Legislative, purports to eliminate the Onondaga County Sheriffs power over
operational responsibility for both Jamesville Correction al and the Justice Center to solely the
Justice Center.
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ARGUMENT
POINT I
PETITIONER SEEKS RELIEF I.INDER BOTH ARTICLE 78 AND CPLR 1OO3
Petitioner brings this hybrid proceeding seeking relief under Article 78 of the CPLR
and, alternatively, a judgment under CPLR 3001 declaring that Onondaga County Local Law
No. 1-2023 was illegally enacted and is invalid and enforceable.
Article 78 authorizes a petitioner to bring a special proceeding against a body or
officer. To proceed under Article 78, a petitioner must raise one of five questions outlined in
CPLR 7804. Petitioner challenges Onondaga County and the Onondaga County Legislature
under CPLR 7304(1)-(3), as: (1) the Onondaga County Legislature failed to perform its duty
by attempting to enact Local Law No. l-2023 without requiring the law to be subject to
mandatory referendum for approval as required by New York Municipal Home Rule Law
S 23; (2) the Onondaga County Legislature proceeded in excess of its jurisdiction by
attempting to enact Local Law No. 1-2023 without a mandatory referendum for approval as
required by New York Municipal Home Rule Law $ 23; (3) the Onondaga County Legislature
attempted to enact Local Law No. 1-2023 in violation of lawful procedure by failing to subject
the local law to a mandatory referendum for approval as required by New York Municipal
Home Rule Law $ 23.
Although Petitioner believes he is entitled to relief under Article 78,he also recognizes
a line of cases finding laws invalid and grantingrelief as declaratory judgment actions under
CPLR 3001. See Sacco v. Maruca,775 A.D.2d 578,578 (4thDeptl99l) (converting Article 78
petition to declaratory judgement action and finding local law is subject to mandatory
referendum and properly declared invalid); Bakery Salvage Corp. tt. City of Bufalo,IT5 A.D.2d
608, 609 (4th Dept 199t) (finding declaratoryjudgment action and not Article 78 proceeding
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"is appropriate vehicle to test the validity of the ordinance at issue," and declaring ordinance
unconstitutional). Given the short period of time to file an Article 78 petition, and in an effort
to preserve Petitioner's rights to proceed through both avenues, Petitioner has brought this
action as a hybrid proceeding. However, Petitioner acknowledges the possibility that the
Court may convert this action into a declaratory judgment action pursuant to CPLR 103(c).
POINT II
LOCAL LAW NO. 1-2023 ISII\IVALID AND UNENFORCEABLE
Under Municipal Home Rule Law S 23, a local law is subject to mandatory
referendum if it "[a]bolishes, transfers or curtails any power of an elective officer." "The
requirement of a referendum for legislation that 'curtails any power of an elective officer' must
bercad as applying only to legislation that impairs a power conferued on the officer as part of
the framework of local government." Mayor of City of New York v. Council of City of New York,
9 N.Y.3d 23, 33 (2007). "Where a referendum is required, but is not held, the local law is
invalid." Gizzo'rt. Town of Mamaroneck,36 A.D.3d 762, 166 (2dDept2006); see also Sacco v.
Maruca,775 A.D.2d 578, 578 (AthDept799I) (finding local law was properly declared invalid
where it abolished, ffansferred, or curtailed the power of an elected official without being
subject to mandatory referendum).
Local Law No. l-2023 was passed effective immediately, and without any language
allowing it to be submitted for approval of the electors in accordance with Municipal Home
Rule Law $ 23. Compare Local Law No. 1-2023 ("This Local Law shall take effect
immediately and shall be filed consistent with the provisions of New York State Municipal
Home Rule Law."); with Local Law No. 14-2017 ("This local law shall take effect January 1,
2078, consistent with the provisions of the Municipal Home Rule Law, subject to a mandatory
referendum. "). Local Law No. 7-2023 abolishes, transfers, or curtails the power of the Sheriff,
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an elected officer, by striking language from the Administrative Code and from the Charter
granting the Sheriff control over Jamesville Correctional. Because it was not passed subject
to a mandatory referendum, Local Law No. 7-2023 is invalid and unenforceable
A. By Striking Section 10.04 of Article X from the Onondaga County
Administrative Code, Local Law No. l-2023 Abolishes, Transfers, or
Curtails the Power of the Sheriff
Article X of the Administrative Code dictates the powers and responsibilities of the
Sheriff Prior to the passage of Local Law I4-20I7 , the Sheriffhad responsibility for the "the
operation, maintenance, superyision, repafi, custodial care and security of the Onondaga
County jail [Justice Center]." (Exhibit 5, Article X, Section 10.02(b)). The Department of
Corrections, operating under the direction of a Commissioner of Correction appointed by the
Counfy Executive, was "responsible for the operation, maintenance, supervision, repatr,
custodial care and security of the Onondaga County penitentiary and penitentiary farm
[Jamesville Correctional]." (Exhibit 5, Article XVI[, Section 18.02(a)). Local Law No. 14-
2077 added the current language of Section 10.04 of Article X, creating a "Corrections
Division" and placing it, and Jamesville Correctional, under the control of the Sheriff.
Currently, under Section 10.04, "[w]ithin the Offi.ce of the Sheriff, there shall be a
Corections Division under the direction of a chief deputy." (Exhibit 7, Article X,
Section 10.0a(a)). The chief deputy shall "be responsible for the operation, maintenance,
supervision, repat, custodial care and securify of the Onondaga County penitentiary facility
[Jamesville Correctional]." (ExhrbttT, Article X, Section 10.04OXD). Section 10.04 gives
control over Jamesville Correctional to the Onondaga County Sheriff, placing his office in
charge of both the Justice Center and Jamesville Correctional. Under Local Law No. I-2023,
"[t]he Administrative Code is further amended to Strike Section 10.04 in its entirety."
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Through LocaI Law No. I4-20I7, the Legislature and the electors conferred on the
Sheriff, through a chief deputy of the Corrections Division, the responsibility for "the
operation, maintenance, superyision, repatr, custodial care and security of the Onondaga
Counfy penitentiary facility" as pafi of the framework of Onondaga County's local
government. By striking that language and rescinding that responsibility, Local Law No. 1-
2023 abolishes, transfers, or curtails the Sheriffs power. See Major of City of New York v. Council
of City of New York, 789 N.Y.S.2d 860, 863 (Sup. Ct. N.Y. Cty., Nov. 30, 2004) (finding
enactment of locallaw by "ordinary legislative enactment" to be "a curtailment and transfer"
requiring a mandato.ry referendum where the local law limited powers specifically given to
elected official in city chartet adopted by referendum).
This is not mitigated by language added under Local Law No. I-2023 requiring the
Sheriffto "appoint a chief deputy of custody." Under Local LawNo. I-2023, the chief deputy
of custody would only be responsible for "the operation, maintenance, supervision, repat,
custodial care andsecurity of the Onondaga County jail [Justice Center]." Al1mention of the
Onondaga County penitentiary [Jamesville Correctional], and the Chief Deputy's
responsibility for it, is gone. The change from a Chief Deputy of Correction to a Chief Deputy
of Custody is not a change in name only. Rather, it rescinds the power grantedto the Sheriffs
Office under Local Law No. 4-2017 to operate Jamesville Correctional. When the Legislature
took such power away from the County Executive in 2077 , it did so subject to a mandatory
referendum. If the County and Legislature wish to now take such power away from the
Sheriff, it must similarly do so subject to a mandatory referendum.
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B By Striking Section 1003 of Article X from the Onondaga County Charter'
Local Law No. l-2023 Abolishes, Transfers, or Curtails the Power of the
Sheriff
In addition to changing the Administrative Code, Local Law No. I-2023 also alters
the Charter. Article X of the Charter governs the Office of the Sheriff. (See Exhibit 8,
Article X). Prior to Local Law No. 74-2017, only Section 1001 and 1002 existed. (See
Exhibit 6, Article X). Local Law No. 74-2017 added Section 1003, which created a
"Corrections Division under the supervision of the Office of the Sheriff," tasking the Sheriff
with "appoint[ing] a chief deputy to the head of such department." (Exhibit 8, Article X,
Section 1003). Specifically, the chief deputy would "have and exercise a1l the powers and
duties now or hereafter conferred or imposed upon county penitentiary superintendents by
any applicable law." (Exhibit 8, Article X, Section 1003).
Local Law No. 1-2023 would "strike Section 1003 in its entirety," omitting any
mention of a Corrections Division or the county penitentiary. It revokes the Sheriffs power
to appoint a chief deputy with "the powers and duties now or hereafter conferred or imposed
upon county penitentiary superintendents." "The authority of elected officials to appoint is a
'power' within the meaning of Municipal Home Rule Law $ 23(2)(D. . . and therefore any
law that would abolish, transfer or curtail such must be approved by referendum." New York
Public Interest Research Group v. Giuliani, 228 A.D .2d 27 6, 27 6 (lstDept t996). By takin g away
the Sheriffs power to appoint a chief deputy with oversight over the county penitentiary
[Jamesville Correctional], Local Law No. t-2023 abolishes, ffansfers, or curtails a power of
an elective officer and therefore requires a mandatory referendum in order to be valid and
enforceable.
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The fact that Section 2 of Local Law No. 7-2023 adds language mandating the
appointment of a "chief deputy of custody" "who shall be the head of the county jail [Justice
Center]" does not change the conclusion that a power is curtailed. The Sheriff aheady had
responsibilrty for the "the operation, maintenance, superyision, repair, custodial care and
security of the Onondaga County jail [Justice Center]," and the power to "appoint or deputize
an Undersheriff and such deputy sheriffs." The addition of Iangtage in accordance with
Section 2 only mandates how the Sheriff organizes control and supervision over the Justice
Center. It does not address the revocation of the Sheriff s ability to appoint a chief deputy
with "a11 the powers and duties now or hereafter conferred or imposed upon county
penitentiary superintendents." Local Law No. 7-2023 changes the Charterby taking away the
Sheriffs ability to appoint a chief depufy to oversee famesville Correctional. Adding a
requirement to appoint a chief deputy to oversee the Justice Center does not change that the local
law abolishes, transfers, or curtails the Sheriffs power over Jamesville Correctional.
Prior to passage of Local Law No. 14-2017 , it was the "commissioner of correction"
who retained "all the powers and duties now or hereafter conferred or imposed upon county
penitentiary superintendents." (Exhibit 6, Article XVIII, Section 1802). The commissioner of
correction was appointed by the county executive. (Exhibit 6, Article XVIII, Section 1802).
When that appointment power was taken from the county executive in 20L7 by Local Law
No. 14-2017, it was done by mandatory referendum. In order to take that same power from
the Sheriffnow, it must be done by mandatory referendum because it abolishes, ffansfers, or
curtails a power of the Sheriff, an elective officer. Because Local Law No. l-2023 is effective
immediately and contains no provision requiring it to be submitted for the approval of the
Onondaga County electors through amandatory referendum, it is invalid and unenforceable.
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CONCLUSION
Based upon the foregoing, Petitioner respectfully urges the Court to render judgment
grantrng the Petition and declaring Onondaga County Local Law No. t-2023 to be invalid
and unenforceable.
DATED: June9,2023 ADAMS LECLAIR LLP
By:
Paul , Esq.
Ryan Lefkowitz, Esq.
Att om ey s for P e titio ner
28F. Main Street, Suite 1500
Rochester, NY 14614
(s8s) 327-4104
Fax: (585) 327-4200
ple clatr @adamsle cl air. I aw
rle fkowitz @adamsleclair. law
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Preview
FILED: ONONDAGA COUNTY CLERK 06/09/2023 12:02 PM INDEX NO. 005761/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/09/2023 STATE OF NEW YORK SUPREME COURT: COUNTY OF ONONDAGA TOBIAS SHELLEY AS SHERIFF OF ONONDAGA COUNTX Index No.:2023/005761 Petitioner, MEMORANDTIM VS OF LAW THE ONONDAGA COUNTY LEGISLATURE AND THE COUNTY OF ONONDAGA, Respondents. PRELIMINARY STATEMENT This is a petition under New York Civil Practice Law and Rules ("CPLR") 1003 for declaratory judgment and Article 78 to find Onondaga County Local Law No. l-2023 invalid and unenforceable. On February 7, 2023, the Onondaga County Legislature (the "Legislature") passed Local Law No. 7-2023, which abolished, transferred, or curtailed the Onondaga County Sheriffs power to: (1) operate, maintain, supervise, repar, provide custodial care, and secure Jamesville Correctional Facility ("Jamesville Correctional") and; (2) to appoint a chief deputy to oversee Jamesville Correctional. Under New York Municipal Home Rule Law $ 23, such local laws are subject to mandatory referendum. Because Local Law No. 7-2023 was not submitted for the approval of the Onondaga County electors via mandatory referendum, it is invalid and unenforceable. RELEVANT FACTS Petitioner Tobias Shelley is the Sheriff of Onondaga Counry ("Sheriff Shelley"). (Affidavit of Tobias Shelley ["Shelley Aff "], fl 1). He was elected in the November 8,2022 1 of 11 FILED: ONONDAGA COUNTY CLERK 06/09/2023 12:02 PM INDEX NO. 005761/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/09/2023 election and sworn in on December 27 ,2022. (Shelley Aff., flfl 2-3). SheriffShelley has served as Onondaga County SheriffsinceJanuary 7,2023. (ShelleyAff, fl 3). Onondaga County currently has two facilities that house inmates. (Shelley Aff, fl 5). Jamesville Correctional Facility ("Jamesville Correctional"), also referred to as the Onondaga County Correctional Facility, is Onondaga County's penitentiary. (Shelley Aff., fl 6). The Patrick J. Corbett Justice Center ("Justice Center"), also known as the Onondaga County Justice Center, is Onondaga County's jail. (Shelley Aff., fl 7). These two facilities serve different purposes. Jamesville Correctional is a medium security facility that holds inmates that have been convicted and sentenced for a crime and are serving out their sentence, while the Justice Center is a maximum-security facility that houses individuals who have been arrested, pre-trral detainees, and those who are awaiting transfer to a correctional facility. (Shelley Aff., fl 10). In 2017, Local Law No. l4-20L7 was enacted. The law transferred control of and responsibility for Jamesville Correctional from the Onondaga County Executive to the Onondaga County Sheriff. (Shelley Aff., fl 11, Ex. 1). Local Law No. 14-2017 was subject to amandatory referendum and approved by the genenl electorate in the fall of 2017. (Shelley Aff., fl 11, Ex. 1). Prior to the enactment of Local Law No. t4-2077, the Sheriff akeadyhad responsibility for the operation, maintenance, supervision , repair, custodial care and security of the Justice Center, as reflected in the Onondaga County Administrative Code "Administrative Code"). (Shelley Aff., fl 12;2013 Onondaga County Administrative Code, Article X, Section 10.02@)1 ["Exhibit 5"]). I Pursuant to CPLR 4511, Petitioner need not request that the Court take judicial notice of local laws and county acts. See also Brandes Meat Corp. v. Cromer, 146 A.D.2d 666, 667 (2dDept 1989) ("[T]his court may, in general, take judicial notice of matters of public record. "); Rex Padng Corp. r'. White, 139 A.D.2d I7 6, 783 n.2 (3rd Dept 1988) ("[J]udicial notice may be taken of matters of public record[.]"). However, for the Court's 2 2 of 11 FILED: ONONDAGA COUNTY CLERK 06/09/2023 12:02 PM INDEX NO. 005761/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/09/2023 Since assuming office on January l, 2023, Sheriff Shelley has had responsibility for both Jamesville Correctional and the Justice Center in accordance with the Administrative Code. (Shelley Aff., fl 13; Administrative Code, Article X ["Exhibit7"l). His responsibilities for both facilities include, but are not limited to, the operation, maintenance, superyision, rcpa:r and security of the facilities; and the housing, care, custody, and rehabilitation of all inmates sentenced or assigned to such facilities. (Shelley Aff., fl 13; Exhibit 7, Article X, Section 10.02(b), Section 10.04(bxi)). On December 9, 2022, Sheriff Shelley first became aware of an initiative led by Onondaga County Executive Ryan McMahon to close Jamesville Correctional. (Shelley Aff., fl 14). Such closure would involve ffansferring all Jamesville Correctional inmates and Jamesville Correctional staff to the Justice Center, compliance with significant penitentiary regulations, and negotiation with collective bargaintngunits. (Shelley Aff., fl 14). At no point was Sheriff Shelley involved, included, or invited to participate in any discussion with the Legislature or the County Executive on the plan or concept of closing Jamesville Correctional. (Shelley Aff., T 15). Following Sheriff Shelley's election and three weeks prior to his ssumption of office, he was asked to support the plan to close Jamesville Correctional. (Shelley Aff., ,1T 15). He was still not provided with any information, rationale, or compliance sffategy for such a course of action. (Shelley Aff., fl 15). Onondaga County officials, without the input or approval of Sheriff Shelley, unilaterally began the process of removing Sheriff Shelley's power to operate Jamesville convenience, copies of the Administrative Code and Charter, current as of December 2013, have been attached as Exhibits 5 and 6, respectively. Copies of the Administrative Code and Charter, current as of December 2017 , have been attached as Exhibit 7 and 8, respectively. The most current versions of the Administrative Code and Charter, current through December 2019, contain no alterations to the cited provisions in Exhibits 7 and 8. Both arc av ailable at http : / / www. o n gov. net / le gislature / . 3 3 of 11 FILED: ONONDAGA COUNTY CLERK 06/09/2023 12:02 PM INDEX NO. 005761/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/09/2023 Correctional. On January 37, 2023, Sheriff Shelley attended a meeting of the Onondaga County Ways & Means Committee where a local law was proposed that would strip Sheriff Shelley of control of Jamesville Correctional. (Shelley Aff., li 16). At the meeting, First Chief Deputy County Attorney Benjamin Yaus opined that the proposed local law did not require a mandatory referendum because it was not altering the power of the Sheriff. (Shelley Aff., Ex.2 at 11). Shortly after this meeting, on February 7,2023, Local Law No. l-2023 was passed. (Shelley Aff., Ex. 3). In Section 1, "Findings," of Local Law No. l-2023, the law stated its passage was driven by "the resultant need for closure of the county penitentiary facility [Jamesville Correctional]." (Shelley Aff., Ex. 3)' Local Law No. 1-2023 strikes from the Onondaga Counfy Charter ("Charter") the Iangvage grar.fting the Onondaga Counfy Sheriff the responsibility for and conffol over Jamesville Correctional, langvage added by Local Law No. 74-20L7 via mandatory referendum. (Shelley Aff., Ex. 3). It also strikes Section 10.04 from the Administrative Code, which placed responsibility for "the operation, maintenance, supervision, repat, custodial care and security of the Onondaga County penitentiary facility [Jamesville Correctional]" in the hands of the Onondaga Counfy Sheriff. (Shelley Aff., Ex. 3). Local Law No. 7-2023, as enacted by the Legislative, purports to eliminate the Onondaga County Sheriffs power over operational responsibility for both Jamesville Correction al and the Justice Center to solely the Justice Center. 4 4 of 11 FILED: ONONDAGA COUNTY CLERK 06/09/2023 12:02 PM INDEX NO. 005761/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/09/2023 ARGUMENT POINT I PETITIONER SEEKS RELIEF I.INDER BOTH ARTICLE 78 AND CPLR 1OO3 Petitioner brings this hybrid proceeding seeking relief under Article 78 of the CPLR and, alternatively, a judgment under CPLR 3001 declaring that Onondaga County Local Law No. 1-2023 was illegally enacted and is invalid and enforceable. Article 78 authorizes a petitioner to bring a special proceeding against a body or officer. To proceed under Article 78, a petitioner must raise one of five questions outlined in CPLR 7804. Petitioner challenges Onondaga County and the Onondaga County Legislature under CPLR 7304(1)-(3), as: (1) the Onondaga County Legislature failed to perform its duty by attempting to enact Local Law No. l-2023 without requiring the law to be subject to mandatory referendum for approval as required by New York Municipal Home Rule Law S 23; (2) the Onondaga County Legislature proceeded in excess of its jurisdiction by attempting to enact Local Law No. 1-2023 without a mandatory referendum for approval as required by New York Municipal Home Rule Law $ 23; (3) the Onondaga County Legislature attempted to enact Local Law No. 1-2023 in violation of lawful procedure by failing to subject the local law to a mandatory referendum for approval as required by New York Municipal Home Rule Law $ 23. Although Petitioner believes he is entitled to relief under Article 78,he also recognizes a line of cases finding laws invalid and grantingrelief as declaratory judgment actions under CPLR 3001. See Sacco v. Maruca,775 A.D.2d 578,578 (4thDeptl99l) (converting Article 78 petition to declaratory judgement action and finding local law is subject to mandatory referendum and properly declared invalid); Bakery Salvage Corp. tt. City of Bufalo,IT5 A.D.2d 608, 609 (4th Dept 199t) (finding declaratoryjudgment action and not Article 78 proceeding 5 5 of 11 FILED: ONONDAGA COUNTY CLERK 06/09/2023 12:02 PM INDEX NO. 005761/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/09/2023 "is appropriate vehicle to test the validity of the ordinance at issue," and declaring ordinance unconstitutional). Given the short period of time to file an Article 78 petition, and in an effort to preserve Petitioner's rights to proceed through both avenues, Petitioner has brought this action as a hybrid proceeding. However, Petitioner acknowledges the possibility that the Court may convert this action into a declaratory judgment action pursuant to CPLR 103(c). POINT II LOCAL LAW NO. 1-2023 ISII\IVALID AND UNENFORCEABLE Under Municipal Home Rule Law S 23, a local law is subject to mandatory referendum if it "[a]bolishes, transfers or curtails any power of an elective officer." "The requirement of a referendum for legislation that 'curtails any power of an elective officer' must bercad as applying only to legislation that impairs a power conferued on the officer as part of the framework of local government." Mayor of City of New York v. Council of City of New York, 9 N.Y.3d 23, 33 (2007). "Where a referendum is required, but is not held, the local law is invalid." Gizzo'rt. Town of Mamaroneck,36 A.D.3d 762, 166 (2dDept2006); see also Sacco v. Maruca,775 A.D.2d 578, 578 (AthDept799I) (finding local law was properly declared invalid where it abolished, ffansferred, or curtailed the power of an elected official without being subject to mandatory referendum). Local Law No. l-2023 was passed effective immediately, and without any language allowing it to be submitted for approval of the electors in accordance with Municipal Home Rule Law $ 23. Compare Local Law No. 1-2023 ("This Local Law shall take effect immediately and shall be filed consistent with the provisions of New York State Municipal Home Rule Law."); with Local Law No. 14-2017 ("This local law shall take effect January 1, 2078, consistent with the provisions of the Municipal Home Rule Law, subject to a mandatory referendum. "). Local Law No. 7-2023 abolishes, transfers, or curtails the power of the Sheriff, 6 6 of 11 FILED: ONONDAGA COUNTY CLERK 06/09/2023 12:02 PM INDEX NO. 005761/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/09/2023 an elected officer, by striking language from the Administrative Code and from the Charter granting the Sheriff control over Jamesville Correctional. Because it was not passed subject to a mandatory referendum, Local Law No. 7-2023 is invalid and unenforceable A. By Striking Section 10.04 of Article X from the Onondaga County Administrative Code, Local Law No. l-2023 Abolishes, Transfers, or Curtails the Power of the Sheriff Article X of the Administrative Code dictates the powers and responsibilities of the Sheriff Prior to the passage of Local Law I4-20I7 , the Sheriffhad responsibility for the "the operation, maintenance, superyision, repafi, custodial care and security of the Onondaga County jail [Justice Center]." (Exhibit 5, Article X, Section 10.02(b)). The Department of Corrections, operating under the direction of a Commissioner of Correction appointed by the Counfy Executive, was "responsible for the operation, maintenance, supervision, repatr, custodial care and security of the Onondaga County penitentiary and penitentiary farm [Jamesville Correctional]." (Exhibit 5, Article XVI[, Section 18.02(a)). Local Law No. 14- 2077 added the current language of Section 10.04 of Article X, creating a "Corrections Division" and placing it, and Jamesville Correctional, under the control of the Sheriff. Currently, under Section 10.04, "[w]ithin the Offi.ce of the Sheriff, there shall be a Corections Division under the direction of a chief deputy." (Exhibit 7, Article X, Section 10.0a(a)). The chief deputy shall "be responsible for the operation, maintenance, supervision, repat, custodial care and securify of the Onondaga County penitentiary facility [Jamesville Correctional]." (ExhrbttT, Article X, Section 10.04OXD). Section 10.04 gives control over Jamesville Correctional to the Onondaga County Sheriff, placing his office in charge of both the Justice Center and Jamesville Correctional. Under Local Law No. I-2023, "[t]he Administrative Code is further amended to Strike Section 10.04 in its entirety." 7 7 of 11 FILED: ONONDAGA COUNTY CLERK 06/09/2023 12:02 PM INDEX NO. 005761/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/09/2023 Through LocaI Law No. I4-20I7, the Legislature and the electors conferred on the Sheriff, through a chief deputy of the Corrections Division, the responsibility for "the operation, maintenance, superyision, repatr, custodial care and security of the Onondaga Counfy penitentiary facility" as pafi of the framework of Onondaga County's local government. By striking that language and rescinding that responsibility, Local Law No. 1- 2023 abolishes, transfers, or curtails the Sheriffs power. See Major of City of New York v. Council of City of New York, 789 N.Y.S.2d 860, 863 (Sup. Ct. N.Y. Cty., Nov. 30, 2004) (finding enactment of locallaw by "ordinary legislative enactment" to be "a curtailment and transfer" requiring a mandato.ry referendum where the local law limited powers specifically given to elected official in city chartet adopted by referendum). This is not mitigated by language added under Local Law No. I-2023 requiring the Sheriffto "appoint a chief deputy of custody." Under Local LawNo. I-2023, the chief deputy of custody would only be responsible for "the operation, maintenance, supervision, repat, custodial care andsecurity of the Onondaga County jail [Justice Center]." Al1mention of the Onondaga County penitentiary [Jamesville Correctional], and the Chief Deputy's responsibility for it, is gone. The change from a Chief Deputy of Correction to a Chief Deputy of Custody is not a change in name only. Rather, it rescinds the power grantedto the Sheriffs Office under Local Law No. 4-2017 to operate Jamesville Correctional. When the Legislature took such power away from the County Executive in 2077 , it did so subject to a mandatory referendum. If the County and Legislature wish to now take such power away from the Sheriff, it must similarly do so subject to a mandatory referendum. 8 8 of 11 FILED: ONONDAGA COUNTY CLERK 06/09/2023 12:02 PM INDEX NO. 005761/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/09/2023 B By Striking Section 1003 of Article X from the Onondaga County Charter' Local Law No. l-2023 Abolishes, Transfers, or Curtails the Power of the Sheriff In addition to changing the Administrative Code, Local Law No. I-2023 also alters the Charter. Article X of the Charter governs the Office of the Sheriff. (See Exhibit 8, Article X). Prior to Local Law No. 74-2017, only Section 1001 and 1002 existed. (See Exhibit 6, Article X). Local Law No. 74-2017 added Section 1003, which created a "Corrections Division under the supervision of the Office of the Sheriff," tasking the Sheriff with "appoint[ing] a chief deputy to the head of such department." (Exhibit 8, Article X, Section 1003). Specifically, the chief deputy would "have and exercise a1l the powers and duties now or hereafter conferred or imposed upon county penitentiary superintendents by any applicable law." (Exhibit 8, Article X, Section 1003). Local Law No. 1-2023 would "strike Section 1003 in its entirety," omitting any mention of a Corrections Division or the county penitentiary. It revokes the Sheriffs power to appoint a chief deputy with "the powers and duties now or hereafter conferred or imposed upon county penitentiary superintendents." "The authority of elected officials to appoint is a 'power' within the meaning of Municipal Home Rule Law $ 23(2)(D. . . and therefore any law that would abolish, transfer or curtail such must be approved by referendum." New York Public Interest Research Group v. Giuliani, 228 A.D .2d 27 6, 27 6 (lstDept t996). By takin g away the Sheriffs power to appoint a chief deputy with oversight over the county penitentiary [Jamesville Correctional], Local Law No. t-2023 abolishes, ffansfers, or curtails a power of an elective officer and therefore requires a mandatory referendum in order to be valid and enforceable. 9 9 of 11 FILED: ONONDAGA COUNTY CLERK 06/09/2023 12:02 PM INDEX NO. 005761/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/09/2023 The fact that Section 2 of Local Law No. 7-2023 adds language mandating the appointment of a "chief deputy of custody" "who shall be the head of the county jail [Justice Center]" does not change the conclusion that a power is curtailed. The Sheriff aheady had responsibilrty for the "the operation, maintenance, superyision, repair, custodial care and security of the Onondaga County jail [Justice Center]," and the power to "appoint or deputize an Undersheriff and such deputy sheriffs." The addition of Iangtage in accordance with Section 2 only mandates how the Sheriff organizes control and supervision over the Justice Center. It does not address the revocation of the Sheriff s ability to appoint a chief deputy with "a11 the powers and duties now or hereafter conferred or imposed upon county penitentiary superintendents." Local Law No. 7-2023 changes the Charterby taking away the Sheriffs ability to appoint a chief depufy to oversee famesville Correctional. Adding a requirement to appoint a chief deputy to oversee the Justice Center does not change that the local law abolishes, transfers, or curtails the Sheriffs power over Jamesville Correctional. Prior to passage of Local Law No. 14-2017 , it was the "commissioner of correction" who retained "all the powers and duties now or hereafter conferred or imposed upon county penitentiary superintendents." (Exhibit 6, Article XVIII, Section 1802). The commissioner of correction was appointed by the county executive. (Exhibit 6, Article XVIII, Section 1802). When that appointment power was taken from the county executive in 20L7 by Local Law No. 14-2017, it was done by mandatory referendum. In order to take that same power from the Sheriffnow, it must be done by mandatory referendum because it abolishes, ffansfers, or curtails a power of the Sheriff, an elective officer. Because Local Law No. l-2023 is effective immediately and contains no provision requiring it to be submitted for the approval of the Onondaga County electors through amandatory referendum, it is invalid and unenforceable. 10 10 of 11 FILED: ONONDAGA COUNTY CLERK 06/09/2023 12:02 PM INDEX NO. 005761/2023 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 06/09/2023 CONCLUSION Based upon the foregoing, Petitioner respectfully urges the Court to render judgment grantrng the Petition and declaring Onondaga County Local Law No. t-2023 to be invalid and unenforceable. DATED: June9,2023 ADAMS LECLAIR LLP By: Paul , Esq. Ryan Lefkowitz, Esq. Att om ey s for P e titio ner 28F. Main Street, Suite 1500 Rochester, NY 14614 (s8s) 327-4104 Fax: (585) 327-4200 ple clatr @adamsle cl air. I aw rle fkowitz @adamsleclair. law 11 11 of 11