American Commuters Association v. Levitt

• Decision Date: 19 December 1967
• Docket Number: No. 67 Civ. 2534.,67 Civ. 2534.
• Parties: AMERICAN COMMUTERS ASSOCIATION, Inc., Luis A. Gallop, and Julian S. Herz, its co-chairmen, Deborah Christman by her father and guardian ad litem, the plaintiff Luis A. Gallop, Marian E. Herz, by her father and guardian ad litem, the plaintiff Julian S. Herz, William S. Diefenbach, Bert Silbert and Lewis Smith, Plaintiffs, v. Arthur LEVITT, Individually and as Comptroller of the State of New York et al., Defendants.
• Court: U.S. District Court — Southern District of New York

279 F. Supp. 40

AMERICAN COMMUTERS ASSOCIATION, Inc., Luis A. Gallop, and Julian S. Herz, its co-chairmen, Deborah Christman by her father and guardian ad litem, the plaintiff Luis A. Gallop, Marian E. Herz, by her father and guardian ad litem, the plaintiff Julian S. Herz, William S. Diefenbach, Bert Silbert and Lewis Smith, Plaintiffs, v. Arthur LEVITT, Individually and as Comptroller of the State of New York et al., Defendants.

No. 67 Civ. 2534.

United States District Court S. D. New York.

December 19, 1967.

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Weisman, Celler, Allan, Spett & Sheinberg, New York City, for plaintiffs; O. John Rogge, Herbert R. Berk, Richard A. Osserman, Arthur Keller, of counsel.

Louis J. Lefkowitz, Atty. Gen. of State of New York, for defendant State Officers; Joel Lewittes, Mortimer Sattler, Asst. Attys. Gen., of counsel.

J. Lee Rankin, Corporation Counsel, New York City, for defendant Procaccino et al.; Samuel J. Warms, New York City, Gale Zareko, of counsel.

OPINION

BONSAL, District Judge.

Plaintiffs move for an order pursuant to 28 U.S.C. §§ 2281 and 2284 convening a three-judge court, and defendants Mario A. Procaccino, individually and as Comptroller of the City of New York; Roy M. Goodman, individually and as Director of Finance of the City of New York; other officials of the City of New York; the members of the New York City Board of Higher Education; and the members of the New York City Board of Education, move for an order pursuant to Rule 12(b), F.R.Civ.P., dismissing plaintiffs' complaint.¹ Plaintiffs' motion is denied and defendants' motion to dismiss plaintiffs' complaint is granted.

Plaintiff, American Commuters Association, Inc. (the Association), is a New Jersey corporation with some 1800 members who are residents of New Jersey or Connecticut and who earn all, or substantially all, their income in New York State. The individual plaintiffs, including Luis A. Gallop and Julian S. Herz, co-chairmen of the Association, earn all, or substantially all, their income in New York State.

In addition to the defendants named above, the other defendants are Arthur Levitt, individually and as Comptroller of the State of New York; Joseph M. Murphy, individually and as Commissioner of Taxation and Finance of the State of New York; James E. Allen, Jr., individually and as Commissioner of Education of the State of New York and as President of the University of the State of New York; the Chancellor and Vice Chancellor of the University of the State of New York; other officials of the State of New York; the members of the New York State Board of Regents; and the members of the New York State Board of Social Welfare.

Plaintiffs sue on their own behalf and on behalf of others similarly situated, seeking:

1) an injunction against enforcement by the defendants of provisions of the following statutes (the challenged statutes): New York Conservation Law, New York Education Law, New York Mental Hygiene Law, New York Private Housing Finance Law, New York Public Housing Law, New York Social Services Law (the challenged statutes conferring benefits), New York Tax Law and New York City Administrative Code;

2) a declaratory judgment that the provisions of the New York Tax Law, McKinney's Consol.Laws, c. 60, (§§ 631-637), imposing a State income tax on nonresidents, and the provisions of the New York City Administrative Code (§§ U46-1.0—U46-52.0), imposing a City income tax on nonresidents (the challenged statutes imposing taxes), are unconstitutional; and,

3) a declaratory judgment that provisions of the challenged statutes conferring benefits² are unconstitutional. Plaintiffs contend that this court has jurisdiction under 28 U.S.C. § 1331(a) and § 1343(3) on the grounds that:

1) the matter in controversy exceeds $10,000 and arises under the Constitution of the United States; and,

2) defendants have deprived plaintiffs of their civil rights under color of State law and City ordinance in violation of 42 U.S.C. § 1983.

In their complaint, plaintiffs allege:

1) that the defendants Levitt, Murphy and members of the State Tax Commission collect from the plaintiffs and members of the Association the same amount in State income taxes as they collect from residents of New York;

2) that the defendants Procaccino, Goodman and other tax officials of New York City collect City income taxes from the plaintiffs and members of the Association under the New York City Administrative Code; and,

3) that the remaining defendants deny to plaintiffs, other members of the Association and other nonresident commuters most of the benefits which, under the challenged statutes conferring benefits, the State and City of New York provide with the money collected in taxes, and that during the five fiscal years, April 1, 1962 to March 31, 1967, the defendants and their predecessors, acting under color of State statutes, denied to plaintiffs and other nonresident commuters 75.92% of the benefits provided by the State of New York.

The complaint further alleges that the following benefits have been denied to plaintiffs by the defendants

1) As to plaintiff Deborah Christman whose father, the plaintiff Luis A. Gallop earns substantially all his income in New York State, admission and a scholarship to the University of the State of New York (the University), and a student loan for the purpose of attending college. The complaint alleges that plaintiff Deborah Christman was advised by agents of certain of the defendants, acting under New York Education Law §§ 601-a, subd. 2(c); 604, subd. 1; 651; 653, subd. 1; 6301, that since she was not a resident of New York State and had not been a resident for a year, she was not eligible for admission to or a scholarship at the University or for a student loan for the purpose of attending college;

2) As to plaintiff Marian E. Herz whose father, the plaintiff Julian S. Herz earns substantially all his income in New York State, admission to the Bronx High School of Science. The complaint alleges that since the plaintiff Marian E. Herz was not a resident of New York State, she was denied admission by agents of certain of the defendants, acting under New York Education Law, § 3202, subds. 1, 2 and 3.

3) As to plaintiff William S. Diefenbach who earns substantially all his income in New York State, a fishing license for the same fee that a resident would be required to pay. The complaint alleges that since plaintiff Diefenbach was not a resident of New York State, the defendant Kilborne, New York State Conservation Commissioner, by his agent, acting under New York Conservation Law, § 220(2) and (3) (a), (b), required plaintiff to pay a fee of $5.50 for a fishing license whereas a resident would have been required to pay a fee of $3.25.

4) As to plaintiff Bert Silbert, who earned substantially all his income in New York State, the benefits of Welfare and Medicaid under the New York Social Services Law. The complaint alleges that since plaintiff Silbert had not been a resident of New York State for one year prior to his application for Welfare and Medicaid, certain of the defendants and their agents, acting under New York Social Services Law § 117, subd. 1, denied plaintiff the benefits of Welfare and Medicaid.

5) As to plaintiff Lewis Smith who earns substantially all his income in New York State, admission to tuition free evening classes at The City College. The complaint alleges that since plaintiff had not been a resident of New York State for a year, he was denied admission by agents of the members of the New York City Board of Higher Education, acting under New York Education Law, § 6301.

Plaintiffs contend that under the challenged statutes, defendants deprive plaintiffs of "Privileges and Immunities of Citizens in the several States" and deny them equal protection and due process of law in violation of Article IV, Section 2 of the United States Constitution and the Fourteenth Amendment. Plaintiffs' principal argument is that while it is not necessary for a taxpayer to receive benefits in exact proportion to the amount of taxes he pays, the Constitution does require a degree of equivalence between taxes paid and benefits received, an equivalence that is lacking under the challenged statutes. Plaintiffs say that nonresident commuters, including some of the plaintiffs in this action, pay the same amount of income taxes as residents pay³ but are denied all the benefits provided by New York State and City except for those benefits, such as fire and police protection, which are available to any visitor to New York who pays no income taxes. In addition, plaintiffs argue that provisions of the challenged statutes conferring benefits (see note 2, supra) which plaintiffs allege impose residence requirements, often of a year, are unconstitutional, citing recent decisions by three-judge courts in Harrell v. Tobriner, 279 F.Supp. 22 (D.D.C.1967); Thompson v. Shapiro, 270 F.Supp. 331 (D.Conn.1967); Green v. Dep't of Public Welfare, 270 F.Supp. 173 (D.Del.1967). Defendants deny that one year's residence is required for eligibility for Welfare and Medicaid (see New York Social Services Law §§ 158, 210, 349 and 366) and point out that plaintiffs allege no facts to indicate that plaintiff Silbert would have been eligible for Welfare or Medicaid had he met the residence requirements of the Social Services Law.

In deciding these motions, the court is limited to determining whether it has jurisdiction (see Ex Parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); National Council on Facts of Overpopulation v. Caplin, 224 F.Supp. 313 (D.D.C.1963), leave to file petition for writ of mandamus denied, 376 U.S. 948, 84 S.Ct. 976, 11 L.Ed.2d 977 (1964); cf. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Duncombe v. State of New York, 267 F.Supp. 103 (S.D.N.Y.1967); Christian v. United States, 235 F.Supp. 382 (S.D.Fla.196...