Carey v. Klutznick
| Decision Date | 12 June 1981 |
| Docket Number | D,No. 947,947 |
| Citation | 653 F.2d 732 |
| Parties | Hugh L. CAREY, et al., Plaintiffs-Appellees, v. Philip M. KLUTZNICK, et al., Defendants-Appellants. ocket 81-6042. |
| Court | U.S. Court of Appeals — Second Circuit |
Steven E. Obus, New York City (John S. Martin, U.S. Atty., S.D.N.Y., Jane E. Booth, Susan M. Campbell, Michael H. Dolinger, Gaines Gwathmey, III, Thomas D. Warren, Asst. U.S. Attys., New York City, of counsel), for defendants-appellants.
Peter Bienstock, New York City (Robert Abrams, Atty. Gen. of the State of New York, Robert Hermann, Daniel Berger, New York City, of counsel), for plaintiffs-appellees Hugh L. Carey and the State of New York.
Frederick A. O. Schwartz, Jr., New York City (Cravath, Swaine & Moore, Robert S. Rifkind, John A. Redmon, Roger D. Einerson, Daniel J. Danser, Mark P. Schnapp, David A. Barrett, Michael J. Malone, David B. Watkiss, Morris Waisbrot, Ellen S. Oran, Jeffrey D. Chansler, Alan R. Glickman, Genevieve A. Harris, Thomas S. Szatkowski, New York City, of counsel), for plaintiffs-appellees Alan Chou, Rose L. Dawson, Samuel Lefkowitz, Michael Loizou, Edwin Martinez, Walter E. Marx, Brunilda Pacheco and Lemuel Stanislaus.
Alan G. Schwartz, Corp. Counsel for The City of New York, New York City (Mary McCorry, New York City, of counsel), for plaintiffs-appellees Edward I. Koch and The City of New York.
Allan Blumstein, New York City (Paul Weiss, Rifkind, Wharton & Garrison, Aryeh S. Friedman, New York City, of counsel), amicus curiae, for the American Jewish Committee.
Jim Leach, Washington, D.C. (Member of Congress), amicus curiae, pro se.
Jack Greenberg, New York City (N.A.A.C.P. Legal Defense and Educational Fund, Bill Lann Lee, Beth Lief, Judith Reed, New York City, of counsel), amicus curiae, for the N.A.A.C.P. Legal Defense and Educational Fund, Inc.
Vilma S. Martinez, San Francisco, Cal. (Mexican American Legal Defense and Educational Fund, Morris J. Baller, Mike S. Bernick, San Francisco, Cal., of counsel), M.D. Taracido, New York City (Puerto Rican Legal Defense and Educational Fund, Robert L. Becker, New York City, of counsel), amici curiae, for the National Council of La Raza, Aspira of America, National Concilio of America, National Puerto Rican Forum and United Bronx Parents.
Steven R. Shapiro, New York City (New York Civil Liberties Union, Arthur Eisenberg, New York City, of counsel), Bruce J. Ennis, New York City (American Civil Liberties Union, New York City) amici curiae, for the New York Civil Liberties Union and American Civil Liberties Union.
John J. Gunther, Washington, D.C. (United States Conference of Mayors, Stephen C. Chapple, Washington, D.C., of counsel), amicus curiae, for the United States Conference of Mayors.
Before VAN GRAAFEILAND and MESKILL, Circuit Judges, and STEWART, District Judge. *
When the first federal census was conducted in 1790, the total population of the United States was less than 4,000,000. 1 New York City, the country's largest municipality, had only 33,000 inhabitants. 2 Despite these relatively small numbers, the census, which was conducted by United States Marshals, did not go smoothly. Transportation and communication were inadequate. 3 Boundaries of towns and cities were often undefined. 4 Cooperation by the citizenry was less than complete. Some people distrusted the newly-formed federal government; others were influenced by a fear of increased taxation; many opposed the basic concept of a census. 5
Because art. 1, § 2, cl. 3 of the then newly-enacted Constitution provided that members of the House of Representatives and direct taxes should be apportioned among the States according to population, it had been anticipated that the census would provide an accurate count. A State's temptation to exaggerate its population count for purposes of congressional representation would be offset by its desire to reduce its apportioned share of direct taxes. 6 However, when the census was finally completed in 1791, there was a fairly wide-spread belief that it had resulted in a substantial undercount. 7
Although the mechanics of the counting process have been improved in each of the nineteen ensuing censuses, there has never been a perfect count. 8 This is concededly true of the 1980 census. In keeping with the spirit of the times, States and municipalities in various parts of the country are seeking to remedy this most recent imperfection through litigation. 9 Approximately fifty lawsuits have been brought by or on behalf of subordinate government bodies, in each of which the claim of a substantial local or regional undercount is made. 10
This is an appeal from a judgment of the United States District Court for the Southern District of New York, 508 F.Supp. 420, in an action alleging undercounts in the State and City of New York. The judgment orders the Census Bureau to adjust population figures for the State and City "in a reasonable and scientific manner" and to report to the court within thirty days the Bureau's plan to effectuate the court's ruling. 11 For reasons hereafter assigned, we reverse and remand for a new trial.
Although the census is the delight of statisticians and sociologists and serves as a convenient measuring stick for the dispensing of federal funds, it was not created for those purposes. Its purpose under the Constitution was to determine the apportionment of Representatives among the States. "Representatives ... shall be apportioned among the several States ... according to their respective Numbers ...." 12 In reviewing the judgment on appeal, it is important that we keep this basic constitutional purpose in mind.
The House of Representatives has 435 members, and this number must be apportioned among the fifty States. If one State gains a member, another must lose one. Following the 1960 census, seven States each gained one seat, one State gained four, and one gained eight. As a result, twelve States each lost one seat, three States each lost two seats, and one State lost three seats. 13 Following the 1970 census, three States each gained one seat, one gained three, and one gained five. Seven States each lost one seat, and two States each lost two seats. 14 In effect, House membership is a fund in which fifty States have an interest. No State's share can be increased without adversely affecting at least one other State. The question presented by litigation such as the one now before us is whether one State can be granted such an increase without full consideration having been given to its effect on other States.
Persons "who not only have an interest in the controversy but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience" are traditionally considered to be indispensable parties. 15 Equity suggests that a person be brought into the litigation if the case cannot be decided on its merits without prejudicing his rights. 16 This not only prevents possible injury to the absent person; it avoids multiplicity of suits and the danger of inconsistent decisions. 17
Although the present action has already been before this Court on an appeal from a preliminary injunction order, we did not consider any of the factors just set forth. The panel hearing that appeal held only that plaintiffs have standing to sue and that the issue of census mismanagement is justiciable rather than political. 18 The panel did not address appellants' contention that the issuance of the preliminary injunction order was an abuse of discretion because it "overlook(ed) the impact on other cities and states." 19 The panel concluded that "(t)he argument that a court decision may provide special treatment for the parties involved is one for the ultimate trial on the merits and decision on appeal." 20 We have now reached that point in the litigation.
We think it clear beyond cavil that a statistically formulated increase in the population of only one State, such as New York, will have an adverse effect on other States which are entitled to, but do not receive, the benefit of a similar adjustment. Even if the increase is insufficient to change House membership, it will nonetheless increase New York's share in the numerous revenue sharing plans that are tied into the census. The adversely affected States therefore fall within the category of parties who should be joined in the instant litigation if feasible. 21 Because compulsory joinder of all fifty States was not feasible in the district court, pragmatic equitable alternatives should have been considered. 22
The first alternative, which the prior panel of this Court has already rejected, would have been to substitute Bureau and congressional review for that of the court. 23 This is the recommendation of the Association of the Bar's Special Committee on Empirical Data in Legal Decision Making which concludes its report with the following observation:
The path to a better census is more likely to be found in scrutiny of Bureau procedures by the Bureau itself, Congress, other federal agencies, and interested professional groups than in litigation to compel adjustment. 24
A second alternative would have been to require that notice of suit be given to all of the States, with permission to intervene given any State which felt that its interests were imperiled. Apparently, no notice was given anyone; only the County of Suffolk sought intervention, and its application was denied.
A third alternative would have been to seek multidistrict coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. It appears that thirty-one of the above listed actions have been transferred to the District of Maryland for coordinated or consolidated proceedings. 25 The wisdom vel non of adopting a uniform nationwide method of making...
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