Bay Ridge Community Council, Inc. v. Carey

• Citation: 103 A.D.2d 280,479 N.Y.S.2d 746
• Decision Date: 17 September 1984
• Docket Number: No. 3,No. 2,No. 1,1,2,3
• Parties: BAY RIDGE COMMUNITY COUNCIL, INC., et al., Appellants, v. Hugh L. CAREY, etc., et al., Respondents. (Action) In the Matter of Bernard J. LeBLANC, Appellant. (Action) In the Matter of Robert P. WHELAN, Appellant. (Action) Clarence P. Rappleyea, Intervenor.
• Court: New York Supreme Court Appellate Division

Page 746

479 N.Y.S.2d 746

103 A.D.2d 280

BAY RIDGE COMMUNITY COUNCIL, INC., et al., Appellants, v. Hugh L. CAREY, etc., et al., Respondents. (Action No. 1)

In the Matter of Bernard J. LeBLANC, Appellant. (Action No. 2)

In the Matter of Robert P. WHELAN, Appellant. (Action No. 3)

Clarence P. Rappleyea, Intervenor.

Supreme Court, Appellate Division,

Second Department.

Sept. 17, 1984.

Andrew L. Sichenze and Vincent Rosato, Brooklyn (John J. Halloran, Jr. on the brief), for appellants in Action No. 1.

Gibbons & Burke, P.C., Scotia, for appellant in Action No. 2 (relying on the brief of the intervenor).

McHugh, Leonard & O'Conor, New York City (Robert P. Whelan, New York City, pro se of counsel), for appellant in Action No. 3.

Robert Abrams, Atty. Gen., New York City (George D. Zuckerman, Asst. Atty. Gen., New York City, of counsel), respondent pro se and for respondents Hugh L. Carey, Mario M. Cuomo, and State Bd. of Elections.

Graubard, Moskovitz, McGoldrick, Dannett & Horowitz, New York City (C. Daniel Chill and Kenneth Shapiro, New York City, of counsel), for respondents Stanley Fink and Melvin H. Miller.

Scolaro, Shulman, Cohen & Lawler, P.C., Syracuse (Richard S. Scolaro, Syracuse, of counsel), for intervenor.

Before TITONE, J.P., and O'CONNOR, BOYERS and EIBER, JJ.

PER CURIAM.

The essential facts of this case are succinctly recited in the memorandum of Justice Adler at Special Term (Bay Ridge Community Council v. Carey, 115 Misc.2d 433, 454 N.Y.S.2d 186), and in Flateau v. Anderson, 537 F.Supp. 257, app. dsmd. 458 U.S. 1123, 103 S.Ct. 5, 73 L.Ed.2d 1394. The matter before us is a challenge to the constitutionality of chapter 455 of the Laws of 1982, which re-apportioned the Senate and Assembly districts of the State of New York. That section superseded chapter 111 of the Laws of 1982, the challenged section originally before Special Term.

We fully agree with Justice ADLER that chapter 455 of the Laws of 1982, as amended, apportioning and distributing the Senate and Assembly districts of the State of New York, complies with those provisions of article III of the New York State Constitution which remain in force and effect (see WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Matter of Orans, 15 N.Y.2d 339, 258 N.Y.S.2d 825, 206 N.E.2d 854), and is otherwise valid as a matter of law. Therefore, we affirm the resettled judgment and order insofar as appealed from.

On this appeal, the following issues are raised: (1) whether the law apportioning and distributing the Senate and Assembly districts of the State of New York is in violation of section 5 of article III of the New York State Constitution because the Assembly districts are not "in as compact form as practicable", are not composed of "contiguous territory", and are not "convenient"; (2) whether the law is in violation of the Fourteenth Amendment of the United States Constitution because it invidiously discriminates against a political group and because it impermissibly impairs the voting power of the voters of the community of Bay Ridge and amounts to a partisan political gerrymander; and (3) whether section 5 of article III of the New York State Constitution has otherwise been violated because Hamilton and Fulton Counties are not in the same Assembly district, numerous minor counties (counties which have insufficient population to maintain a full Assembly district) are divided, and because the Legislature, instead of the New York City Council, re-apportioned the Assembly districts in Kings County. We address each of these issues seriatim.

Section 5 of article III of the New York State Constitution directs that the counties of the State shall be divided "into assembly districts as nearly equal in number of inhabitants * * * of convenient and contiguous territory in as compact form as practicable". Initially, we note that appellants have submitted affidavits making numerous unsupported allegations of constitutional violations, together with maps of the challenged districts. These submissions are insufficient for a court to render a finding that the challenged districts are unconstitutional (see Matter of Richardson 307 N.Y. 269, 273, 121 N.E.2d 217).

In any event, the law complies with the constitutional requirements of compactness, contiguity, and convenience. Legislative districts need only be as compact as practicable. They need not be drawn in the form of geometric figures or perfect circles (see Matter of Richardson supra; Matter of Dowling, 219 N.Y. 44, 113 N.E. 545). The Legislature may, at a minimum, take account of existing political subdivision lines, topography, means of transportation and lines of communication without violating the compactness standards (see Matter of Sherill v. O'Brien, 188 N.Y. 185, 207, 81 N.E. 124). Where cities in which the population is heavily concentrated are concerned, the requirement of substantial population equality (Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; WMCA, Inc. v. Lomenzo, supra ) will necessitate districts whose boundaries at best are ragged (see Matter of Schneider v. Rockefeller, 31 N.Y.2d 420, 429-430, 340 N.Y.S.2d 889, 293 N.E.2d 67).

In the case at bar, the challenged districts, both in Kings County and in upstate New York, are subject to the equality of population requirement ofReynolds v. Sims (supra). Moreover, it is obvious that the Legislature intended to avoid a total population deviation in excess of 10% between the Assembly district with the largest population and the district with the smallest population, since such a deviation constitutes a prima facie case of discrimination (see Brown v. Thomson, 462 U.S. 835, 103 S.Ct. 2690, 2696, 77 L.Ed.2d 214). In addition, Kings County, by virtue of the 1980 census, lost two and one-half Assembly districts, and the Legislature was required to maintain the voting power of minority groups pursuant to the Voting Rights Act of 1965 (U.S.Code, tit. 42, § 1973c; see Flateau v. Anderson, supra ). Hence, the challenged law is in compliance with the "compactness" and "convenience" requirements of section 5 of article III. Since all of the territory in all of the challenged districts is connected, the districts meet the requirements of "contiguity" (see Matter of Schneider v. Rockefeller, supra, 31 N.Y.2d p. 430, 340 N.Y.S.2d 889, 293 N.E.2d 67).

The law is also in compliance with the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Contrary to appellants' contention there is no evidence that the law invidiously discriminates against any political group (see Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298; cf. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314; Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110). In fact, State legislative redistricting operates under a more relaxed standard than congressional redistricting (see Brown v. Thomson, supra; Gaffney v. Cummings, supra; Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320; cf. Karcher v. Daggett, 462 U.S. 725, 103 S.Ct. 2653, 77 L.Ed.2d 133; Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519). The Federal courts have recognized that political considerations cannot be divorced from the State legislative redistricting process (see Gaffney v. Cummings, supra, see, also, White v. Regester, supra; Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363; Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376). Voter behavior is unpredictable, and no political group has a guaranteed constitutional right to proportional representation in a legislative body (see City of Mobile v. Bolden, 446 U.S. 55, 78-80, 100 S.Ct. 1490, 1505-1506, 64 L.Ed.2d 47).

The claim that the voting power of the voters of the community of Bay Ridge has been impermissibly impaired cannot be sustained. Similar claims have been dismissed by the Federal courts (see United Jewish Organizations of Williamsburgh v. Wilson, 510 F.2d 512, affd. on other grounds sub nom. United Jewish Organizations of Williamsburgh v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229; see, also, Mirrione v. Anderson, 717 F.2d 743, in which plaintiff's complaint, which asserted that the same 1982 Assembly redistricting plan attacked here impermissibly impaired the collective voting power of the voters of Rosedale, Queens, was dismissed for failure to state a claim for which relief could be granted).

Regarding the claim that the law amounts to a partisan political gerrymander, such a claim is nonjusticiable (see, e.g., WMCA, Inc. v. Lomenzo, 382 U.S. 4, 5-6, 86 S.Ct. 90, 15 L.Ed.2d 15 Cousins v. City Council of Chicago, 466 F.2d 830, 844-845, cert. den. 409 U.S. 893, 93 S.Ct. 85, 34 L.Ed.2d 151; Wells v. Rockefeller, 311 F.Supp. 48, 52, affd. 398 U.S. 901, 90 S.Ct. 1696, 26 L.Ed.2d 60; Koziol v. Burkhardt, 51 N.J. 412, 241 A.2d 451,...