Franklin v. Krause

• Decision Date: 16 November 1972
• Citation: 338 N.Y.S.2d 561,72 Misc.2d 104
• Parties: Lawrence FRANKLIN et al., Plaintiffs, v. Stanley W. KRAUSE, Clerk of the Board of Supervisors of the County of Nassau, et al., Defendants.
• Court: New York Supreme Court

Page 561

338 N.Y.S.2d 561

72 Misc.2d 104

Lawrence FRANKLIN et al., Plaintiffs, v. Stanley W. KRAUSE, Clerk of the Board of Supervisors of the County of Nassau, et al., Defendants.

Supreme Court, Trial Term, Nassau County, Part V.

Nov. 16, 1972.

Stanley Harwood and John F. Armentano, Mineola, for plaintiffs.

George C. Pratt, Mineola, special counsel for defendant Board of Supervisors.

Joseph Jaspan, County, Atty. of Nassau County, Mineola, for defendants.

MEMORANDUM

MARIO PITTONI, Justice.

Plaintiffs sued defendant-Board in 1968 for a judgment declaring defendant-Board to be illegally apportioned, and the State Supreme Court, the Appellate Division of the Supreme Court and the Court of Appeals all held that apportionment of defendant-Board unconstitutional (Franklin v. Mandeville et al., 57 Misc.2d 1072, 294 N.Y.S.2d 141; affd. 32 A.D.2d 549, 299 N.Y.S.2d 953; mod. 26 N.Y.2d 65, 308 N.Y.S.2d 375, 256 N.E.2d 534 (1970); mot. to clarification, etc., denied 28 N.Y.2d 988, 323 N.Y.S.2d 841, 272 N.E.2d 340 (1971)). The Court of Appeals also ordered defendant-Board to adopt a valid plan 'within six months after public announcement of the enumeration of the inhabitants of Nassau County in the Federal census of 1970 . . .' (p. 70, 308 N.Y.S.2d p. 377, 256 N.E.2d p. 535).

The litigants dispute the starting date of that six month period commanded by the Court of Appeals. However, no matter whose starting date we adopt, defendant-Board did not adopt a plan within six months commanded by the Court of Appeals. Following the Court of Appeals decision, defendant-Board did not introduce its new plan until August 14, 1972, nor adopt it until September 25, 1972. Therefore, plaintiffs say, not having acted within the specified time, defendant-Board has forfeited the right to adopt a plan of its own and the court should appointed a non-partisan commission to prepare a plan of apportionment.

Plaintiffs also say that the plan adopted by defendant-Board on September 25, 1972, is only a warmed over version of the one previously held unconstitutional by the Court of Appeals and is, therefore, also unconstitutional. Plaintiffs fortify their position by saying that 'weighted voting' as in this case is another violation of that cliche d 'one man-one vote' rule developed by the United States Supreme Court within the last decade.

The previous plan found unconstitutional by the Court of Appeals had been in effect since 1939. It provided for weighted voting whereby the Supervisors of the three towns and the two cities should have a number of votes equal to one vote for each 10,000 inhabitants which they represent. Fractional votes were not to be counted. For calculation purposes, each Hempstead Supervisor was deemed to represent one-half of the Town's population. There was one proviso, however, namely, that the Supervisor or Supervisors of no town or city could cast more than 50% Of the votes. This was the system found unconstitutional in Franklin v. Mandeville, 26 N.Y.2d 65, 308 N.Y.S.2d 375, 256 N.E.2d 534.

The Court of Appeals in Franklin v. Mandeville, Supra, at p. 69, 308 N.Y.S.2d at p. 377, 256 N.E.2d at p. 535, stated as follows:

'This provision has survived two attempts at reapportionment, proposals therefor having been defeated in referendums conducted in 1965 and 1967; and clearly violates the one man, one vote principle. The phenomenal population growth in Hempstead, as in Nassau County generally, points up the inequality created and perpetuated by the charter provision. Not only are the Hempstead Supervisors presently barred from exercise of a majority vote, but section 104 would continue to deprive them, or the residents of any other town or city subsequently containing a majority of the county population, from majority representation, regardless of how great their majority may presently be or may in future become. This is the vital factor which distinguishes the case from Abate v. Mundt, 25 N.Y.2d 309, 305 N.Y.S.2d 465, 253 N.E.2d 189, recently decided.'

The new plan adopted September 25, 1972, is embodied in Local Law No. 13--1972. It continues a structure of town and city Supervisors sitting as Board members, the mandatory decennial reallocation of votes and use of a weighted voting system. It also continues the prohibition against fractional votes and against a Supervisor splitting his vote.

In fixing the standards for allocating votes, the new law provides that the 'voting power' of a Supervisor shall be measured 'by the mathematical possibility of his casting a decisive vote on a particular matter.' It then equates a town's or city's 'voting power' with that of its Supervisor, or, in the case of Hempstead, with the total voting power of its two Supervisors.

Furthermore, the percentages of voting power 'shall approximate' the corresponding percentages of population and it further guarantees that no town or city shall be wholly without voting power.

Finally, in establishing its general standards for the system, the new plan requires that in preparing each reapportionment of votes defendant-Board shall employ 'an independent computerized mathematical analysis' and any other methods which shall 'most nearly analyze' the percentages of voting power and population.

Paragraph 5 of the new law turns from general standards to specific allocation of votes based upon the 1970 census data. In arriving at these members defendant-Board followed the standards of paragraph 4 and worked with the aid of 'an independent computerized analysis.' The total number of votes allocated was 130, divided as follows:

                Hempstead        35
                Hempstead        35
                Oyster Bay       32
                North Hempstead  23
                Long Beach        3
                Glen Cove         2
                

The number of votes required for passage of a measure requiring a 'majority' vote was fixed at 71 and for a 'two-thirds' measure at 92. With these mathematical bases the computer then calculates the number of decisive votes each Supervisor may cast, then the respective percentages of voting power and, finally, for comparison purposes, the corresponding percentage of population.

Summarized in the 'majority' plan, the relevant percentages and resulting deviations are as follows:

                                   Percentages  Percentages
                                       of            of
                                   Population   Voting Power  Deviation
                                   -----------  ------------  ---------
                Hempstead (Total)         56.2          54.6       -1.6
                Oyster Bay                23.1          20.4       -2.7
                North Hempstead           16.5          13.0       -3.5
                Long Beach                 2.3           5.6       k3.3
                Glen Cove                  1.8           5.6       k3.8
                

For the 'two-thirds' vote, the figures are as follows:

                                   Percentages  Percentages
                                       of            of
                                   Population   Voting Power  Deviation
                                   -----------  ------------  ---------
                Hempstead (Total)     56.2          50.0       -6.2
                Oyster Bay            23.1          20.8       -2.3
                North Hempstead       16.5          20.8       k4.3
                Long Beach             2.3           4.2       k1.9
                Glen Cove              1.8           4.2       k2.4
                

This, then, is the new plan that defendant-Board says follows the standards set in Iannucci v. Board of Supervisors, 20 N.Y.2d 244, 282 N.Y.S.2d 502, 229 N.E.2d 195. This is the plan now under attack as unconstitutional.

Clearly this plan is a strained attempt to keep the old unconstitutional apportionment, tailored here and there to fit the court mandated minimal requirements. But defendant-Board still fails to meet the requirements. The new September 25, 1972, plan, by giving Hempstead 70 votes and requiring 71 votes for a majority, allows Hempstead about 54% Of the votes but requires about 54.6% Of the votes to carry. This requires at least another vote from another municipality on defendant-Board to carry, even though Hempstead has 56.27% Of the total county population. In short, under the plan now adopted, the Hempstead Supervisors are still barred from exercising a majority vote (Franklin v. Mandeville, Supra, 26 N.Y.2d p. 69, 308 N.Y.S.2d 375, 256 N.E.2d 534).

Furthermore, adopting the 'voting power' concept it cannot be said that it is 'mathematically possible for every member of the legislative body to cast the decisive vote on legislation in the same ratio which the population of his constituency bears to the total population . . .'; nor can it be said that his voting power approximates 'the power he would have in a legislative body which did not employ weighted voting' (Iannucci v. Board of Supervisors, 20 N.Y.2d 244, 252, 282 N.Y.S.2d 502, 508, 229 N.E.2d 195, 199).

Also, the City of Glen Cove is given voting power greater than three times its share of its population and voting power equal to the City of Long Beach, which has one-third greater population than the City of Glen Cove. Also, these two small cities, smaller than many villages in Nassau County, have greater voting power than they are entitled, to the detriment of the voting powers of the three towns.

Hempstead, whose population is 56.27% Of the county, is deprived of 11.14% Of the power to which it is entitled, Oyster Bay is deprived of over 11% Of the power to which it is entitled and North Hempstead is given 26.5% More power than it should receive because of its population.

The redistribution of voting power is even more lopsided when a two-thirds majority is required. The newly adopted plan requires 92 votes out of 130, whereas 2/3 of the vote should require only 87 votes.

County Executive Ralph Caso stated the difficulty with the present plan in his veto message when he said:

'In effect, the proposed law would retain the present Board of Supervisors without material change. At the time of the Franklin decision, the population of the Town of Hempstead constituted 57.12% Of the county population but Hempstead's two representatives on the Board of Supervisors...