Bay Ridge Community Council v. Carey

• Decision Date: 21 June 1982
• Citation: 454 N.Y.S.2d 186,115 Misc.2d 433
• Parties: BAY RIDGE COMMUNITY COUNCIL, et al., Plaintiffs, v. Hugh L. CAREY, etc., et al., Defendants. In the Matter of the Petition of Bernard L. LeBLANC, Petitioner. To Review Chapter 111 of the Laws of 1982. In the Matter of The Petition of Robert P. WHELAN, Petitioner. To Review Chapter 111 of the Law of 1982.
• Court: New York Supreme Court

Page 186

454 N.Y.S.2d 186

115 Misc.2d 433

BAY RIDGE COMMUNITY COUNCIL, et al., Plaintiffs, v. Hugh L. CAREY, etc., et al., Defendants.

In the Matter of the Petition of Bernard L. LeBLANC, Petitioner.

To Review Chapter 111 of the Laws of 1982.

In the Matter of The Petition of Robert P. WHELAN, Petitioner.

To Review Chapter 111 of the Law of 1982.

Supreme Court, Special Term,

Kings County, Part I.

June 21, 1982.

C. Daniel Chill and Kenneth Shapiro, New York City, for defendants Stanley Find and Melvin H. Miller.

Andrew L. Sichenze and Vincent L. Rosato, Brooklyn, for plaintiffs Bay Ridge, et al.

Gibbons & Burke, Scotia, for petitioner Le Blanc.

George D. Zuckerman, New York City, Atty. Gen., for defendants, Hugh L. Carey and Mario Cuomo and the N.Y.S. Board of Elections.

John F. Haggerty, Brooklyn, for defendants Anderson & Rolison.

McHugh, Leonard & O'Connor, New York City, for petitioner Robert P. Whelan by Robert P. Whelan.

GERALD ADLER, Justice.

There are three motions before this court. The first finds its way to the County of Kings by reason of an order of the Appellate Division of the Supreme Court of the State of New York held in and for the Third Department in Albany, New York, Dated June 9, 1982, in which the court ordered that an action pending in the Supreme Court, Kings County, entitled Bay Ridge Community Council, Inc., et al., Plaintiffs, vs. Hugh L. Carey, et al., Defendants, and the proceeding pending in the Supreme Court, Schenectady County, entitled, In the Matter of the Petition of Bernard J. LeBlanc, be consolidated into one action and proceeding.

The second motion is of course the action entitled, Bay Ridge Community Council, Inc., et al., Plaintiffs, vs. Hugh L. Carey, et al., Defendants, and the third motion is The Petition of Robert P. Whelan.

All of the Petitioners and Plaintiffs seek to review Chapter 111 of the Laws of 1982 as amended, apportioning and districting the Senate and Assembly of the State of New York, contending that the aforesaid act as amended is unconstitutional and void as a matter of law and they seek an order enjoining the Respondents and Defendants from implementing said law apportioning and districting the Assembly districts in accordance with said law.

The motions were made returnable at Special Term, Part I on Friday, June 18, 1982, and arguments were heard all afternoon until the close of court, and are consolidated herein into one special proceeding.

The Respondents have made four separate cross motions seeking dismissal of the petitions pursuant to CPLR 3211(a) 7 and/or summary judgment declaring Chapter 111 of the Laws of 1982 to be constitutional and valid.

The court must first determine if the challenges to the reapportionment plan are justiciable at this time. The Respondent, New York State Attorney General, contends that these proceedings are premature. He argues that Kings County is covered by the Voting Rights Act of 1965 so that any reapportionment plan affecting Kings County must be submitted to the Attorney General of the United States for approval. Until such approval is given, the plan does not become law. Since the Attorney General of the United States has not yet approved or disapproved the reapportionment plan, Respondent maintains there is no justiciable controversy. At the same time, the court has been informed, that there will be a decision on that matter this very day, Monday, June 21, 1982.

Both Article III, Section 5 of the New York State Constitution and Section 1 of Chapter 773 of the Laws of 1911 (founded in unconsolidated Laws, Sec. 4221) empower the Supreme Court to review "an apportionment by the Legislature." It is simply "that ", which the court now has before it and which is subject to immediate judicial review. Indeed the New York State Constitution provides that "any court before which a cause may be pending involving an apportionment, shall give precedence thereto over all other causes and proceedings." (N.Y. Const., Art. III, § 5) (emphasis supplied). Moreover, petitioning for the coming primary elections is due to begin tomorrow, June 22, 1982. Both the voters and candidates are entitled to a determination as to whether or not the reapportionment plan, as enacted, is constitutional before the gathering of signatures on the petitions. Under all of these circumstances, the court concludes that the controversy before it is justiciable and not premature.

The court will now consider the specific objections to the reapportionment plan.

Petitioners contend that the reapportionment plan violates the State Constitution's anti-gerrymander provisions requiring that legislative districts be "compact", "contiguous" and "convenient" (N.Y. Const., Art. III, § 5).

The Bay Ridge Community Council are particularly incensed in respect to the boundary lines as enacted in the reapportionment of the 46th, 48th, 51st and 52nd Assembly districts. They point out that the area has in effect been divided and subdivided into various elongated and disfigured shapes and segments and they claim that the new lines as drawn, will have the effect of diffusing the political power of the community and the efficacy of the vote of its citizens. They claim that it requires no great genius to see that a better set of lines more respective of the common interests of the voters in the Bay Ridge area could have been drawn, and that the Assembly districts are neither convenient, contiguous nor compact; that it represents partisan, racial gerrymandering and is otherwise an afront to fairness.

From a lay point of view, there is some degree of accuracy to the charges, as it pertains to the shape of the districts, however, this court must determine whether or not there have been violations of State Constitutional Requirements within the legal meaning of the terms which have been employed by the Petitioners and as they have been interpreted by the New York Courts.

The term "contiguous territory" has been defined by the Court of Appeals as "territory touching, adjoining and connected, as distinguished from territory separated by other territory." Matter of Sherrill v. O'Brien, 188 N.Y. 185, 207, 81 N.E. 124 (1907).

The Court of Appeals stated:

"In construing the language of the Constitution as in construing the language of a statute, the courts should look for the intention of the people and give to the language used its ordinary meaning. The ordinary and plain meaning of the words 'contiguous territory' is not territory near by, in the neighborhood or locality of, but territory touching, adjoining and connected, as distinguished from territory separated by other territory." (underscoring added)

In Schneider v. Rockefeller, 31 N.Y.2d 420, 430, 340 N.Y.S.2d 889, 293 N.E.2d 67 (1972) the Court of Appeals rejected a challenge on grounds of contiguity stating:

"Petitioners cite us to numerous examples of allegedly noncontiguous districts, many of which are located on or near bodies of water. However, the requirement of contiguity is not necessarily violated because a part of a district is divided by water. (Matter of Reynolds, 202 N.Y. 430, 442-443, 96 N.E. 87, 89; Ince v. Rockefeller, D.C., 290 F.Supp. 878.) Moreover, in none of the cited examples is it necessary to travel through an adjoining district to keep within the boundaries of the challenged district." (underscoring added)

The 46th A.D. under challenge here is clearing within the parameters of the Court of Appeals holding. In fact unlike the districts in Schneider, the 46th A.D. herein is all in one county, and is not divided in whole or in part by water. Like Schneider, it is not necessary to travel through an adjoining district to keep within the 46th Assembly District or for that matter the boundaries of any district in the instant plan. See also Matter of Reynolds, 202 N.Y. 430, 96 N.E. 87 (1911); Matter of Orans, 17 N.Y.2d 107, 269 N.Y.S.2d 97, 216 N.E.2d 311 (1966); Ince v. Rockefeller, 290 F.Supp. 878, 883 (S.D.N.Y. 1968).

For more than a half a century, attempts to invalidate districting on the grounds of non-compactness have uniformly been rejected by the courts. In Matter of Dowling, the Court of Appeals, although severely pressed by counsel to reject the plan on grounds of non-compactness, refused to declare the Senate districts violative of the constitutional requirement of compactness. The Court stated (219 N.Y. 44, at p. 58, 113 N.E. 545):

"It is also claimed that the constitutional provision in regard to compactness has been violated in the counties of New York, Kings and Westchester. .... The constitutional provision does not provide unqualifiedly for compactness. Senatorial districts are not required to be in the form of geometric figures, as a square or perhaps a circle. Such a provision would be impractical and impossible to carry out. It is expressly provided that the districts shall be as compact as practicable. This permits of a consideration in good faith of existing lines, topography, means of transportation, etc." (underscoring added)

In Matter of Richardson, 307 N.Y. 269, 121 N.E.2d 217, the Court of Appeals, again rejected an attack on the compactness of districts.

In reviewing the issue of compactness, in addition to the Dowling interpretation as noted above, it is important to remember that the population of New York State is not spread across the State in neat geometric patterns but varies considerably in density even within metropolitan areas. This fact was recognized by Justice Conway in his opinion in the Schneider case when, after noting the odd shapes and sizes of the political subdivisions of the State and the problems involved in shifting populations, he stated:

"This Court must take judicial notice of the fact that New York State is one of the oddest shaped states in the United States. The Court must also acknowledge the fact that the political subdivisions of the state, the counties, towns and cities, also have odd shapes and sizes caused by many...