CITIZENS FOR COMMUN. ACT., LOCAL LEVEL, INC. v. Ghezzi, Civ. A. No. 1973-222.

• Citation: 386 F. Supp. 1
• Decision Date: 22 November 1974
• Docket Number: Civ. A. No. 1973-222.
• Parties: CITIZENS FOR COMMUNITY ACTION AT the LOCAL LEVEL, INC., and Francis W. Shedd, Individually and on Behalf of all others similarly situated, Plaintiffs, v. John J. GHEZZI, Secretary of State of the State of New York, et al., Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Court of Western District of New York

386 F. Supp. 1

CITIZENS FOR COMMUNITY ACTION AT the LOCAL LEVEL, INC., and Francis W. Shedd, Individually and on Behalf of all others similarly situated, Plaintiffs, v. John J. GHEZZI, Secretary of State of the State of New York, et al., Defendants.

Civ. A. No. 1973-222.

United States District Court, W. D. New York.

November 22, 1974.

John J. Phelan, Buffalo, N. Y. (Moot, Sprague, Marcy, Landy, Fernbach & Smythe, Buffalo, N. Y., of counsel), for plaintiffs.

Michael G. Wolfgang, Asst. Atty. Gen., State of New York, Buffalo, N. Y. (Louis J. Lefkowitz, Atty. Gen., State of New York, New York City, of counsel), for defendants Ghezzi and Levitt.

Miles A. Lance, Asst. Niagara County Atty., Lockport, N. Y. (Samuel L. Tavano, Niagara County Atty., of counsel), for defendants Graf and Comerford.

Before TIMBERS, Circuit Judge, and BURKE and CURTIN, District Judges.

TIMBERS, Circuit Judge:

QUESTIONS PRESENTED

On these cross motions for summary judgment in an equal suffrage suit seeking declaratory and injunctive relief with respect to Article IX, § 1(h)(1), of the Constitution of the State of New York (McKinney 1969)¹ (hereinafter, New York Constitution), and Section 33(7) of the New York Municipal Home Rule Law (McKinney Supp. 1974-75)² (hereinafter, Home Rule Law), the following are the essential questions presented:

(1) Whether dismissal of a prior action brought in the federal court by the County of Niagara, purportedly on behalf of its citizens and voters, against the State of New York which raised substantially the same issues as are raised herein, constitutes a bar to the instant class action under the doctrine of res judicata.

(2) If not, whether creation of dual voting units of unequal population within a single political subdivision of a state, consisting of the cities of a county and the areas outside of the cities, and the concomitant requirement of separate majorities in each unit for adoption in a county-wide referendum of a county charter form of local government, so dilutes and debases the rights of the county-wide majority as to violate the one man, one vote principle.

For the reasons stated below, we hold that the instant class action is not barred by dismissal of the prior action brought by Niagara County and that the challenged dual majority requirement impairs plaintiffs' constitutional rights in the respects claimed.

Accordingly, we grant plaintiffs' motion for summary judgment and deny defendants' cross motion for summary judgment; we hold that Article IX, § 1(h) (1), of the New York Constitution, and its implementing statute, Section 33(7) of the Home Rule Law, violate the equal protection clause of the Fourteenth Amendment; and we order defendants to accept for filing, and to implement, the Niagara County Charter as approved by a majority of the popular vote in the county-wide referendum held on November 7, 1972.

PARTIES TO THE ACTION

Plaintiffs are Citizens For Community Action At The Local Level, Inc. (CALL), a New York membership corporation, organized for the purpose of securing a county form of government for Niagara County; and Francis W. Shedd, a resident of the City of Niagara Falls, Niagara County, who voted in favor of the adoption of the Niagara County Charter in the November 1972 referendum. Shedd sues for himself and as representative of a class consisting of those residents of Niagara County whose votes for the County Charter allegedly were impaired by the dual referendum requirement. As individuals who allege that their vote was unconstitutionally diluted and debased, Shedd and the plaintiff class have standing to sue. Gray v. Sanders, 372 U.S. 368, 375 (1963).³

Defendants are John J. Ghezzi, Secretary of State of the State of New York; Arthur Levitt, Comptroller of the State of New York; LaVerne S. Graf, Clerk of the Niagara County Legislature; and Kenneth Comerford, County Clerk of Niagara County, in whose office a local law must be filed in order to become effective.

JURISDICTION

This court has jurisdiction over the subject matter and the parties pursuant to the Civil Rights Act, 42 U.S.C. § 1983 (1970), and its jurisdictional implementation, 28 U.S.C. § 1343(3) (1970).

Since the action seeks injunctive relief with respect to provisions of a New York statute and the New York Constitution, a special statutory district court of three judges was convened to hear and determine the action pursuant to 28 U.S.C. §§ 2281 and 2284 (1970).

FACTS

The essential facts alleged in the amended complaint are admitted and may be briefly summarized.

On November 7, 1972, a proposed charter providing for local government, to be known as the Niagara County Charter, was presented to the voters of Niagara County at a county-wide referendum for adoption. Pursuant to the proposed charter, the people of Niagara County would have been entitled to vote for the offices of County Executive and Comptroller. Moreover, the unit of local government provided for in the proposed charter would have had general governmental powers and would have performed substantial governmental functions, including establishment of a tax rate, equalization of assessments, issuance of bonds, maintenance of county property and roads, and the administration of health and public welfare services.

Although a majority of the countywide vote favored adoption of the charter form of local government, the separate majority of voters in the areas of Niagara County outside of the cities voted against adoption.⁴ Accordingly, the proposed charter was not accepted for filing and ultimate implementation by defendants because of non-compliance with the dual majority requirement of § 33(7) of the Home Rule Law.

On December 18, 1972, the County of Niagara, purporting to represent its "citizens and voters", commenced an action in the district court, seeking, inter alia, a declaration that Article IX, § 1(h)(1), of the New York Constitution, and § 33(7) of the Home Rule Law were unconstitutional as violative of the one man, one vote principle. That action was dismissed on the merits by Judge Henderson. County of Niagara, New York v. State of New York, Civil 1972-656 (filed April 3, 1973)⁵ (hereinafter, County of Niagara). On May 4, 1973, plaintiffs commenced the instant action seeking essentially the same relief.

CLAIMS OF THE PARTIES

Plaintiffs' essential claim is that Article IX, § 1(h)(1), and § 33(7) deny them equal protection of the laws because they violate the one man, one vote principle. In support of this claim, plaintiffs point out that, pursuant to the challenged provisions, Niagara County is partitioned into two separate voting units of unequal population, one consisting of the cities within Niagara County and the other consisting of the areas of the county outside of the cities; and that the challenged provisions require a majority vote in each unit, regardless of the total popular vote, for adoption in a county-wide referendum of a county charter form of government having general governmental powers.

Accordingly, plaintiffs demand a declaratory judgment (1) that the challenged constitutional and statutory provisions deny them equal protection of the laws in violation of the Fourteenth Amendment; (2) that the Niagara County Charter was duly adopted by a majority affirmative vote in the county-wide referendum held on November 7, 1972; and (3) that the Charter is in full force and effect as the instrument defining the form of local government for Niagara County. In addition, plaintiffs demand an injunction (1) directing defendants to file and implement the Niagara County Charter as adopted; and (2) directing that an election for the offices of County Executive and Comptroller as provided in the charter be held forthwith.

Defendants' position is twofold. They assert, first, that the instant action is barred by dismissal of the prior action brought by the County of Niagara purportedly on behalf of citizens and voters raising substantially the same issues. Second, with respect to the merits of plaintiffs' constitutional claims, defendants assert (1) that, in adopting constitutional and statutory provisions which prescribed procedures to be followed by a county in adopting a new form of government, the State of New York was exercising sovereign powers solely within the domain of state interests and therefore such provisions are insulated from judicial scrutiny; and (2) that a county-wide referendum for the adoption of a form of local government having general governmental powers, as opposed to an election of representatives in such a governmental structure, need not comply with the one man, one vote principle.

The claims of the respective parties are before us on cross motions for summary judgment.

DEFENDANTS' RES JUDICATA DEFENSE

Before reaching the merits of plaintiffs' constitutional claim, our threshold inquiry must be directed to the question of whether plaintiffs in the instant action are barred from relitigating issues considered and rejected by the district court in the prior action, County of Niagara, New York v. State of New York, supra.

Under settled law three factors must be present to support a defense of res judicata or collateral estoppel: (1) there must have been a "final judgment on the merits" in the prior action; (2) identical issues sought to be raised in the second action must have been decided in the prior action; and (3) the party against whom the defense is asserted must have been a party to or in privity with a party to the prior action. Kreager v. General Electric Company, 497 F. 2d 468, 471 (2 Cir. 1974), quoting from Zdanok v. Glidden Company, Durkee Famous Foods Division, 327 F.2d 944, 955 (2 Cir.), cert. denied, 377 U.S. 934 (1964).

In the instant action, the first two factors stated above are conceded by plaintiffs. There was a final judgment on the merits in County of Niagara and the constitutional issues raised and decided there are essentially identical to those presented...