Auerbach v. Kinley

• Decision Date: 09 October 1980
• Docket Number: No. 80-CV-374.,80-CV-374.
• Parties: Amy AUERBACH, Barbara Shapiro, Andrea Digregorio, Monica Rossi, Mary Ellen Scarpone, Stephen Schreiber, Sharon Sonner, Carrie Newman, Robert Weber, Louis Esbin, Alan Frutkin, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. Raymond J. KINLEY and George Scaringe, Commissioners of the Albany County Board of Elections; Donald Rettaliata and William McKeon, Commissioners of the New York State Board of Elections, individually and in their official capacities, Defendants.
• Court: U.S. District Court — Northern District of New York

499 F. Supp. 1329

Amy AUERBACH, Barbara Shapiro, Andrea Digregorio, Monica Rossi, Mary Ellen Scarpone, Stephen Schreiber, Sharon Sonner, Carrie Newman, Robert Weber, Louis Esbin, Alan Frutkin, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. Raymond J. KINLEY and George Scaringe, Commissioners of the Albany County Board of Elections; Donald Rettaliata and William McKeon, Commissioners of the New York State Board of Elections, individually and in their official capacities, Defendants.

No. 80-CV-374.

United States District Court, N. D. of New York.

October 9, 1980.

COPYRIGHT MATERIAL OMITTED

Jack Lester, Lewis B. Oliver, Jr., Albany, N. Y., for plaintiffs.

Robert G. Lyman, Albany County Atty., Albany, N. Y., for defendants Kinley and Scaringe; William J. Conboy, II, Deputy County Atty., Albany, N. Y., of counsel.

Robert Abrams, Atty. Gen., State of N. Y., Albany, N. Y., for defendants Rettaliata and McKeon; James G. McSparron, Asst. Atty. Gen., Lance A. Russell, Asst. Atty. Gen., Albany, N. Y., of counsel.

McCURN, District Judge.

MEMORANDUM-DECISION AND ORDER

Plaintiffs in this voting rights case are eleven students attending the State University of New York at Albany who seek to register to vote in their college community but who were denied registration by the Albany County Board of Elections. Plaintiffs bring this class action for declaratory and injunctive relief contending that Section 5-104 of the New York Election Law, Article II, § 4 of the New York State Constitution and the questionnaire used by the Albany County Election Commissioners in connection with student registration are unconstitutional on their face and as applied in that they impermissibly discriminate against and unduly burden students' exercise of the franchise in violation of the Fourteenth, Fifteenth and Twenty-Sixth Amendments of the United States Constitution and Sections 1971, 1973 and 1983 of Title 42, United States Code.

Defendants Kinley and Scaringe are Commissioners of the Albany County Board of Elections (hereinafter "County Commissioners"). Defendants Rettaliata and McKeon are Commissioners of the New York State Board of Elections. The State and County Defendants are sued both individually and in their official capacities.

Jurisdiction is asserted under 28 U.S.C. §§ 1331 and 1343(3), (4).

The matter is now before the Court on plaintiffs' motion for a preliminary injunction and defendants' motion to dismiss. Defendants' motion is made pursuant to Rule 12(b) of the Federal Rules of Civil Procedure for failure to raise a substantial federal question and failure to state a claim against either the State or County defendants. In treating the motion to dismiss, the allegations in the complaint must be deemed true.

I. FACTUAL AND STATUTORY BACKGROUND

The named plaintiffs are students at the State University of New York at Albany (hereinafter "SUNY at Albany") and citizens of the United States. At the time the complaint was filed, each had lived in Albany County for at least thirty (30) days and was at least eighteen (18) years of age. Earlier this year, plaintiffs applied to register to vote in Albany County by submitting a mail registration form containing the personal information required under § 5-210 of the Election Law. However, plaintiffs' names were not entered immediately on the registration list because registration forms submitted by students are subject to further scrutiny under the provisions of the New York Election Law challenged in this case.

Section 5-104(1) of the New York Election Law (formerly § 151(a)), which tracks Art. II, § 4 of the New York Constitution, provides as follows:

1. For the purpose of registering and voting no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas; nor while a student of any institution of learning; nor while kept at any welfare institution, asylum or other institution wholly or partly supported at public expense or by charity; nor while confined in any public prison.

An applicant's residence for registration and voting purposes is defined in § 1-104(22) of the Election Law (formerly § 151(b)) as "... that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return." Section 5-104(2) of the Election Law (formerly § 151(c)) provides:

2. In determining a voter's qualification to register and vote, the board to which such application is made shall consider, in addition to the applicant's expressed intent, his conduct and all attendant surrounding circumstances relating thereto. The board taking such registration may consider the applicant's financial independence, business pursuits, employment, income sources, residence for income tax purposes, age, marital status, residence of parents, spouse and children, if any, leaseholds, sites of personal and real property owned by the applicant, motor vehicle and other personal property registration, and other such factors that it may reasonably deem necessary to determine the qualification of an applicant to vote in an election district within its jurisdiction. The decision of a board to which such application is made shall be presumptive evidence of a person's residence for voting purposes.

Pursuant to these statutory provisions, the defendant, County Commissioners, require students to complete and sign a questionnaire before their registration applications are considered. This questionnaire, reproduced as Appendix A below, consists of seventeen (17) questions requesting additional and more detailed information concerning the applicant's affairs than does the standard mail registration form. In this case, all plaintiffs completed and returned the questionnaires to the County Board.

The Albany County Board of Commissioners met on February 20, 1980, and denied plaintiffs' applications to register to vote in Albany County. The notice of rejection that was sent to each plaintiff gave no reasons for the Commissioners' decision apart from the statement that, based on § 5-104, "... the Board has determined that you do not have a valid, permanent and fixed residence in the County of Albany for voting purposes." Complaint, Exhibit Q.

Following this initial rejection, plaintiffs were granted "in person appeals" before the Albany County Election Commissioners.¹ Again, all plaintiffs were denied registration to vote in Albany County. Those plaintiffs who reside on the SUNY at Albany campus allegedly were informed by the Commissioners that registration was denied because they do not consider dormitories to be "legal residences" for voting purposes. Other plaintiffs were told that registration was denied either because they visit or receive financial assistance from their parents, or because they have access to a room in their parents' home.

Thereafter plaintiffs commenced this action under 42 U.S.C. § 1983 on behalf of themselves and "all students residing in Albany County", alleging the deprivation of federal statutory and constitutional rights under color of state law. Specifically, plaintiffs allege that students seeking to register to vote in their college community are denied their rights under the Fourteenth, Fifteenth and Twenty-Sixth Amendments by the imposition of inappropriate and unevenly applied requirements and procedures for establishing residency for voting purposes. They further allege that the disparate treatment accorded students in Albany County is violative of 42 U.S.C. §§ 1971 & 1973. Plaintiffs seek (1) a declaratory judgment that Art. II, § 4 of the New York Constitution, § 5-104 of the Election Law and the questionnaire used by the Albany County defendants are unconstitutional, and (2) to enjoin the defendants from (a) using the questionnaire, (b) treating students in Albany County differently from all other citizens when they apply to register to vote, and (c) denying students the right to register to vote in Albany County.

II. MOTION TO DISMISS THE COMPLAINT

Both the State and County defendants move to dismiss the action pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction on the ground that the complaint fails to raise a substantial federal question. In support of this motion defendants advance three arguments. First, that the Supreme Court gave at least tacit approval to similar statutory treatment of prospective student voters in Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). Second, that § 5-104 of the Election Law and the use of a questionnaire to assist County Boards in the determination of students' residency qualifications have withstood similar constitutional challenges in Whittington v. Board of Elections of Onondaga County, 320 F.Supp. 889 (N.D.N.Y.1970); Palla v. Suffolk County Board of Elections, 31 N.Y.2d 36, 334 N.Y.S.2d 860, 286 N.E.2d 247 (1972); Ramey v. Rockefeller, 348 F.Supp. 780 (E.D.N.Y.1972) (three-judge court); and Cesar v. Onondaga County Board of Elections, 54 A.D. 1108, 389 N.Y. S.2d 58 (App.Div.1976). Third, defendants urge that to the extent plaintiffs are dissatisfied with the decisions of the Albany County Commissioners, the claim advanced seeks nothing more than a review of state administrative proceedings, and the proper forum for such review is the state courts, pursuant to either § 16-108 of the Election Law or Art. 78 of the N.Y.C.P.L. and Rules.

A case otherwise within the jurisdiction of the federal courts may nevertheless be dismissed if the claim advanced "is so insubstantial, implausible, foreclosed by prior decisions of the Supreme Court, or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court, whatever may...