Baker v. Pataki

• Decision Date: 30 May 1996
• Docket Number: 1135,1137,D,1136,Nos. 565,s. 565
• Parties: Theodore BAKER, Raymond Strawder, Yohannes Jackson, Mark A. Simon and Malcolm Nelson, Plaintiffs, Milton Goodman, Anthony Canady, Tyrone Sanchez and Richard Jackson, Plaintiffs-Appellants, v. George E. PATAKI, Governor of the State of New York, and Philip Coombe, Acting Commissioner of the New York State Department of Correctional Services, Defendants-Appellees. ockets 94-2163, 94-2164, 94-2165, 94-2176.
• Court: U.S. Court of Appeals — Second Circuit

Page 919

85 F.3d 919

Theodore BAKER, Raymond Strawder, Yohannes Jackson, Mark A.

Simon and Malcolm Nelson, Plaintiffs,

Milton Goodman, Anthony Canady, Tyrone Sanchez and Richard

Jackson, Plaintiffs-Appellants, v. George E. PATAKI, Governor of the State of New York, and Philip Coombe, Acting Commissioner of the New York

State Department of Correctional

Services, Defendants-Appellees.

Nos. 565, 1135, 1136, 1137, Dockets 94-2163, 94-2164,

94-2165, 94-2176.

United States Court of Appeals,

Second Circuit.

Argued Dec. 20, 1995.

Decided May 30, 1996.

Plaintiffs-appellants appeal from an order of the United States District Court for the Southern District of New York that dismissed their amended complaints, brought pursuant to 42 U.S.C. § 1983 and alleging deprivations of their voting rights under the Fourteenth and Fifteenth Amendments of the United States Constitution and § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973, for failure to state a claim upon which relief can be granted. After a panel of this Court reversed and denied rehearing, we granted rehearing in banc to consider the applicability of § 1973 to new York State's felon disenfranchisement statute, N.Y. Election Law § 5-106(2)-(5).

The order of the district court, insofar as it dismissed plaintiffs-appellants' § 1973 claims, is affirmed by an equally divided Court. The case is remanded to the district court to allow plaintiffs-appellants to replead their Fourteenth and Fifteenth Amendment claims. Judge Mahoney files a separate opinion in favor of affirming the order of the district court with respect to the § 1973 dismissals in which Judges Miner, Walker, McLaughlin, and Jacobs join. Judge Feinberg files a separate opinion in favor of reversing the order of the district court with respect to the § 1973 dismissals in which Chief Judge Newman and Judges Meskill, Kearse, and Parker join. Chief Judge Newman files a separate opinion in favor of reversing the order of the district court with respect to the § 1973 dismissals in which Judge Parker joins.

Brett Dignam, New Haven, Connecticut (Deborah Archer, Richard Buery, Charlotte Burrows, David Gans, Suzanne Perry, law students, The Jerome N. Frank Legal Services Organization, New Haven, Connecticut, John S. Kiernan, Carl Riehl, Debevoise & Plimpton, New York City, of counsel), for Plaintiffs-Appellants.

John McConnell, Assistant Attorney General of the State of New York, Albany, New York (Dennis C. Vacco, Attorney General, Victoria A. Graffeo, Solicitor General, Peter H. Schiff, Deputy Solicitor General, Albany, New York, of counsel), for Defendants-Appellees.

Before NEWMAN, Chief Judge, and FEINBERG, MESKILL, KEARSE, MINER, MAHONEY, WALKER, McLAUGHLIN, JACOBS, and PARKER, Circuit Judges.

PER CURIAM:

This appeal was reheard in banc to consider the applicability of § 2 of the Voting Rights Act of 1965, Pub.L. No. 89-110, 79 Stat. 437, 437, as amended, 42 U.S.C. § 1973 (the "Voting Rights Act" or the "Act"), to New York Election Law § 5-106(2)-(5), which denies the franchise to incarcerated and paroled felons, particularly in light of the felon disenfranchisement provision of § 2 of the Fourteenth Amendment of the United States Constitution. Plaintiffs-appellants, black and hispanic incarcerated felons, appeal from a judgment entered February 22, 1994 in the United States District Court for the Southern District of New York, Vincent L. Broderick, Judge. In accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure, the district court dismissed plaintiffs-appellants' amended complaints, brought pursuant to 42 U.S.C. § 1983 and alleging that § 5-106(2)-(5) disproportionately deprived blacks and hispanics of their right to vote in violation of the Fourteenth and Fifteenth Amendments of the Constitution and § 1973, for failure to state a claim upon which relief could be granted. See Baker v. Cuomo, 842 F.Supp. 718 (S.D.N.Y.1993) ("Baker I ").

A panel of this Court reversed, holding, inter alia, that plaintiffs-appellants had stated a claim under § 1973. See Baker v. Cuomo, 58 F.3d 814 (2d Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 488, 133 L.Ed.2d 415 (1995) ("Baker II "). The panel reaffirmed its decision in a denial of defendants-appellees' petition for rehearing. See Baker v. Cuomo, 58 F.3d at 824-25 ("Baker III "). This Court granted rehearing in banc only with respect to plaintiffs-appellants' § 1973 claims. See Baker v. Cuomo, 67 F.3d 39 (2d Cir.1995) ("Baker IV ").

Fifteen judges were potentially eligible to sit on the in banc court: the thirteen active judges of the court and the two senior judges who had been members of the original panel, Wilfred Feinberg and Thomas J. Meskill. See 28 U.S.C. § 46(c). ¹ However, four active judges, Ralph K. Winter, Pierre N. Leval, Guido Calabresi, and Jose A. Cabranes, recused themselves from the in banc proceeding, including the preliminary vote on whether to rehear the appeal in banc. In addition after the in banc court of eleven judges (the remaining nine active judges and the two senior judges) heard oral argument, one of the active judges, Frank X. Altimari, retired from regular active service (i.e., took senior status) pursuant to 28 U.S.C. § 371(b)(1), and thus became ineligible to sit on the in banc court. See 28 U.S.C. § 46(c); United States v. American-Foreign S.S. Corp., 363 U.S. 685, 686-87, 691, 80 S.Ct. 1336, 1337-38, 4 L.Ed.2d 1491 (1960); United States v. Chestman, 947 F.2d 551, 554 n. * (2d Cir.1991) (in banc), cert. denied, 503 U.S. 1004, 112 S.Ct. 1759, 118 L.Ed.2d 422 (1992).

The ten remaining judges are evenly divided as to the merits of this case. The order of the district court is therefore affirmed insofar as it dismissed plaintiffs-appellants' § 1973 claims. See Alleghany Corp. v. Kirby, 340 F.2d 311, 312 (2d Cir.1965) (in banc) (per curiam), cert. dismissed, 384 U.S. 28, 86 S.Ct. 1250, 16 L.Ed.2d 335 (1966); Farrand Optical Co. v. United States, 317 F.2d 875, 886 (2d Cir.1963) (in banc) (per curiam); Drake Bakeries, Inc. v. Local 50, Am. Bakery & Confectionery Workers Int'l, 294 F.2d 399, 400 (2d Cir.1961) (in banc) (per curiam), aff'd on other grounds, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962). ² Accordingly, the portion of the initial panel opinion that ruled upon plaintiffs-appellants' § 1973 claims, see Baker II, 58 F.3d at 822-24, and the entire panel opinion that denied rehearing, see Baker III, 58 F.3d at 824-25, are vacated. The case is remanded to the district court to allow plaintiffs-appellants to replead their claims under the Fourteenth and Fifteenth Amendments. See Baker II, 58 F.3d at 822.

MAHONEY, Circuit Judge, with whom MINER, WALKER, McLAUGHLIN, and JACOBS, Circuit Judges, join:

This case presents the question whether the "results" test of § 2 of the Voting Rights Act, 42 U.S.C. § 1973, ¹ may properly be applied to New York's felon disenfranchisement statute, N.Y. Elec. Law § 5-106(2)-(5), ² particularly in view of the felon disenfranchisement provision of § 2 of the Fourteenth Amendment. ³ We conclude that such an application would raise serious constitutional questions regarding the scope of Congress' authority to enforce the Fourteenth and Fifteenth Amendments, see NLRB v. Catholic Bishop, 440 U.S. 490, 500-01, 99 S.Ct. 1313, 1318-19, 59 L.Ed.2d 533 (1979), and would " 'alter the "usual constitutional balance between the States and the Federal Government," ' " Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 2401, 115 L.Ed.2d 410 (1991) (quoting Will v. Michigan Dep't of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985))). Because it is not unmistakably clear that, in amending § 1973 in 1982 to incorporate the "results" test, Congress intended that the test be applicable to felon disenfranchisement statutes, we conclude that § 1973 does not apply to § 5-106(2)-(5). Accordingly, plaintiffs-appellants have failed to state a claim under the Voting Rights Act.

Background

On this appeal of a motion to dismiss for failure to state a claim, we accept the factual allegations in plaintiffs-appellants' amended complaints as true. See Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 377 (2d Cir.1995). In addition, we assume familiarity with the factual explications in Baker I, 842 F.Supp. at 720, and Baker II, 58 F.3d at 816-18.

Plaintiffs-appellants Milton Goodman, Anthony Canady, Tyrone Sanchez, and Richard Jackson are black and Hispanic individuals convicted of felonies under the laws of New York State who are currently serving sentences of imprisonment at the Green Haven Correctional Facility in Stormville, New York ("Green Haven"). Pursuant to New York Election Law § 5-106(2), plaintiffs-appellants are not permitted to vote in federal, state, or local elections while incarcerated (or thereafter while on parole). See supra note 2.

On September 30, 1993, plaintiffs-appellants and five other black and Hispanic felons incarcerated at Green Haven filed pro se complaints, pursuant to 42 U.S.C. § 1983, which alleged that § 5-106 deprived them of their voting rights under the Fourteenth and Fifteenth Amendments and under § 1973. Their complaints sought declaratory and injunctive relief--primarily that the district court direct then-defendants Mario Cuomo and Thomas A. Coughlin ⁴ to "ensure and enable plaintiff[s] and those similarly situated to vote in the November, 1993 New York City elections, and all future elections"--and nominal damages. Baker II, 58 F.3d at 817.

The district court issued a memorandum order which stated that the complaints "raise[d] profound issues" that had, however, "already been examined by the judiciary with uniform negative outcomes," and that any "different approach" would more appropriately be undertaken at the appellate level. Baker I, 842 F.Supp. at 720. The court accordingly consolidated the cases, i...