Beatty v. Esposito

Decision Date26 March 1976
Docket NumberNo. 75C 1828.,75C 1828.
PartiesVander L. BEATTY and Samuel D. Wright, Plaintiffs, v. Amadeo ESPOSITO, as Chairman of the Executive Committee of the Democratic County Committee of Kings County, et al., Defendants.
CourtU.S. District Court — Eastern District of New York

Harry R. Pollak, New York City, for plaintiffs.

Harold L. Fisher, Brooklyn, N.Y., for defendants Esposito and Golden.

W. Bernard Richland, Corp. Counsel, New York City, by Robert M. Katz, Asst. Corp. Counsel, Flushing, N.Y., for defendant Bd. of Elections.

MEMORANDUM

PLATT, District Judge.

Defendants have moved to dismiss this action on the ground that this Court lacks jurisdiction over the subject matter thereof because:

"a) it appears on the face of the complaint that the alleged claim does not arise under Title 42, Sections 1971, 1973(c) and 1973(k) of the United States Code;
"b) the complaint fails to show the existence of an actual justiciable controversy or to raise a substantial federal question of the nature required by Article III of the United States Constitution;
"c) the allegations in the complaint fall within the exclusive primary jurisdiction of the BOARD OF ELECTIONS IN THE CITY OF NEW YORK;
"d) the complaint fails to allege a violation of state or federal statute, regulation or practice or to challenge the constitutionality of any such statute, regulation or practice;
"e) the complaint fails to allege or demonstrate any state action;"

and on the further ground that the complaint fails to state a claim upon which relief can be granted because:

"a) the plaintiffs have no standing to institute this action;
"b) defendants are not the proper parties to this action;
"c) the relief prayed for is inappropriate to the facts and circumstances alleged in the complaint;
"d) the judgment (or order) prayed for does not lie in this action;
"e) the alleged controversy between the parties is, on the face of the complaint, not one within Title 28, Section 2201, Title 42, Sections 1971, 1983 of the United States Code or of any other Act of Congress and therefore the relief prayed is inappropriate;"

and also on the ground that the judgment heretofore entered in "Beatty et ano. v. Esposito, etc." in the Kings County Supreme Court on October 28, 1975 "is res judicata as to the issues and claim alleged by plaintiffs" herein.

On the oral argument of the aforesaid motion, and in a letter dated June 13, 1975 addressed to this Court, plaintiffs "cross moved" for a three-judge court under 42 U.S.C. §§ 1973c, 1973j(f), and 28 U.S.C. § 2284, on the ground that in their complaint they are seeking an injunction restraining the defendants from appointing as inspectors of election persons other than those recommended by the elected State Committee members (District Leaders) from Assembly Districts within Kings County, in violation of a practice or procedure with respect to voting in the various districts in the County as that term (i.e., "vote") is defined in 42 U.S.C. § 1971(e).

THE COMPLAINT

The plaintiffs allege in their complaint that the action is brought pursuant to 42 U.S.C. §§ 1971, 1973c and 1973k; that plaintiff Beatty is the duly elected State Committeeman from the 53d Assembly District and plaintiff Wright is the duly elected State Committeeman from the 54th Assembly District, both in Kings County; that defendant Esposito is Chairman of the Executive Committee of the Kings County Democratic Committee (also known as County Leader), and defendant Golden is Chairman of the Kings County Democratic Committee; that the Election Law of the State of New York provides that the Board of Elections shall designate inspectors of election "in each Election District for each Assembly District" upon the recommendation of the County Chairmen of the Democratic and Republican parties; that for many years in Kings County "it has been a practice of the County Chairman of the Democratic Party to recommend the appointment of those persons recommended to him by the Elected State Committee member (District Leaders) from the Assembly District involved"; that the present County Chairman and his predecessors in that office have recommended the appointment as inspectors of only those persons recommended by the plaintiffs; that on September 1, 1975 the Board of Elections appointed inspectors for the 53d Assembly District to act for one year on the recommendation of plaintiff Beatty as transmitted by the defendant Golden; that on October 22, 1975 the Board of Elections upon the request of defendant Golden removed such inspectors and appointed other persons recommended to them by defendant Golden without the consent and against the advice of plaintiff Beatty; that such removal and replacement action without the recommendation of the plaintiff Beatty constituted a substantial change in election practices within the meaning of 42 U.S.C. § 1973c; and that such change was made without obtaining the prior approval of the U.S. Department of Justice and hence was in violation of the law.

DISCUSSION

Defendants oppose plaintiffs' application for a three-judge court on the ground that Section 40 of the Election Law of the State of New York provides that the Board of Elections shall make all such appointments from lists of persons filed by each political party entitled to representation, such lists having been authenticated and filed by the Chairman, or under his direction by the Secretary of the County Committee of the particular party, and that under Section 45 of the Election Law such inspectors must be removed by the Board of Elections upon the written request of the official of the political party who certified the name of the inspector and that the New York cases have consistently held that the Chairman of the County Committee (here the defendant Golden) has the sole and exclusive authority to authenticate and file the list of recommended candidates and to request removal of appointees. Lehner v. O'Rourke, 339 F.Supp. 309 (S.D.N.Y.1971); Kuhn v. Clark (Sup.Ct. Kings Co. June 28, 1974); Application of Harvey, 138 Misc. 837, 246 N.Y.S. 152 (Sup.Ct. New York Co. 1929); see also Sheehan v. McMahon, 44 App. Div. 63, 60 N.Y.S. 452 (1st Dept. 1899).

Defendants' contentions do not, however, resolve the question presented here, namely: whether or not a practice or procedure has evolved under and pursuant to which the County Chairmen of the major parties have sought and received recommendations for appointments to the positions of inspectors of election from the elected State Committee members and adopted such recommendations as their own in preparing, authenticating and filing recommendations under Section 40 of the Election Law, and further have followed the practice of not requesting removal of any such appointee under Section 45 of the Election Law without first obtaining the consent of the District Leader.

If such practices have evolved, as plaintiffs allege, and if they were in force and effect in Kings County on November 1, 1968,* plaintiffs may be entitled to prospective relief herein. The question of whether such practices in fact existed on that date is one which, under 42 U.S.C. § 1973c, "shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28". Allen v. State Board of Elections, 393 U.S. 544, 560-63, 89 S.Ct. 817, 828-31, 22 L.Ed.2d 1, 13-16 (1969).

In the Allen case, the Supreme Court said:

". . . During the Senate hearings on the bill, Senator Fong expressed concern that the word `procedure' was not broad enough to cover various practices that might
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4 cases
  • Hathorn v. Lovorn
    • United States
    • United States Supreme Court
    • 15 Junio 1982
    ...over claims arising under the Voting Rights Act. Ortiz v. Thompson, 604 S.W.2d 443 (Tex.Civ.App.1980). See also Beatty v. Esposito, 411 F.Supp. 107 (EDNY 1976) (finding that state court lacked jurisdiction to decide § 5 issue, without explaining whether state suit arose under the Voting Rig......
  • Ortiz v. Thompson, 6187
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 31 Julio 1980
    ...state judge would also be powerless to adjudicate issues under the Act, and at least one Federal court has so held. Beatty v. Esposito, 411 F.Supp. 107 (E.D.N.Y.1976). We recognize that in Allen the Supreme Court did not expressly state that the term "district court" referred only to a Fede......
  • In re Radtke, 75-B-1443.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • 27 Abril 1976
  • Beatty v. Esposito, 75 C 1828.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 9 Noviembre 1977
    ...This Court's Memorandum of March 26, 1976* denied defendants' motion to dismiss for lack of subject matter jurisdiction, noting that (411 F.Supp. at p. 110): "the sole question to be determined in an action such as this brought by a private litigant is whether the alleged practice is subjec......
2 books & journal articles

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