Greenwald v. BOARD OF SUP'RS OF COUNTY OF SULLIVAN

• Decision Date: 27 June 1983
• Docket Number: No. 82 Civ. 5488,82 Civ. 5596.,82 Civ. 5488
• Citation: 567 F. Supp. 200
• Parties: Dennis GREENWALD, individually and as Supervisor of the Town of Mamakating, Sullivan County, New York, Richard Diffendale, Daniel Thomas, Nicholas Salamone, and Henry Young, individually and as Members of the Town Board of the Town of Mamakating, Sullivan County, New York and on behalf of all the residents of the Town of Mamakating similarly situated; and the Town of Mamakating, Sullivan County, New York; David Kaufman, individually and as Supervisor of the Town of Thompson, Sullivan County, New York, Joel Lerner, Aaron Pollock, William J. Reiber, and Anthony Cellini, individually and as Members of the Town Board of the Town of Thompson, Sullivan County, New York, and on behalf of all the residents of the Town of Thompson similarly situated; and the Town of Thompson, Sullivan County, New York, Plaintiffs, v. The BOARD OF SUPERVISORS OF the COUNTY OF SULLIVAN and the County of Sullivan, Defendants. Fred HAAS, Richard Lanza, Paula Yeager, Gladys S. Sunshine and Tom Brown, individually and as officers and directors of the Sullivan County Chamber of Commerce and Industry, Inc., and Sullivan County Chamber of Commerce and Industry, Inc., Plaintiffs, v. COUNTY OF SULLIVAN, Board of Supervisors of the County of Sullivan and State of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

567 F. Supp. 200

Dennis GREENWALD, individually and as Supervisor of the Town of Mamakating, Sullivan County, New York, Richard Diffendale, Daniel Thomas, Nicholas Salamone, and Henry Young, individually and as Members of the Town Board of the Town of Mamakating, Sullivan County, New York and on behalf of all the residents of the Town of Mamakating similarly situated; and the Town of Mamakating, Sullivan County, New York; David Kaufman, individually and as Supervisor of the Town of Thompson, Sullivan County, New York, Joel Lerner, Aaron Pollock, William J. Reiber, and Anthony Cellini, individually and as Members of the Town Board of the Town of Thompson, Sullivan County, New York, and on behalf of all the residents of the Town of Thompson similarly situated; and the Town of Thompson, Sullivan County, New York, Plaintiffs, v. The BOARD OF SUPERVISORS OF the COUNTY OF SULLIVAN and the County of Sullivan, Defendants.

Fred HAAS, Richard Lanza, Paula Yeager, Gladys S. Sunshine and Tom Brown, individually and as officers and directors of the Sullivan County Chamber of Commerce and Industry, Inc., and Sullivan County Chamber of Commerce and Industry, Inc., Plaintiffs, v. COUNTY OF SULLIVAN, Board of Supervisors of the County of Sullivan and State of New York, Defendants.

Nos. 82 Civ. 5488, 82 Civ. 5596.

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

June 27, 1983.

Stephen L. Oppenheim, Monticello, N.Y., for Greenwald plaintiffs.

William C. Rosen, County Atty., Monticello, N.Y., for Greenwald and Haas defendants.

Orseck, Orseck, Levine & Greenberg, Liberty, N.Y., for Haas plaintiffs; Gerald Orseck, Liberty, N.Y., of counsel.

OPINION

EDWARD WEINFELD, District Judge.

These are two related actions which seek to declare that the plan of apportionment for allocating votes to the members of the Board of Supervisors of Sullivan County (the "Board") is unconstitutional because it allegedly denies residents of towns within the County equal representation. The challenge in each action rests upon a different theory. But at the center of each attack is the use of an adjusted weighted voting plan that apportions voting power among members of the Board.

Sullivan County is geographically part of New York State's southern tier at the foothills of the Catskill Mountains. Though well known for its resort industry, more than 60,000 persons are permanent residents.¹ They are dispersed among fifteen townships that range in population from under 1,000 to over 10,000 people.²

County government in New York State is two-tiered. The County of Sullivan is a municipal corporation and a political subdivision of the State, composed of the fifteen townships. Each township is also a municipal corporation and a political subdivision of the State. Each elects a town board consisting of a supervisor and four council persons. All are elected at large by the town residents. The supervisor is the executive of the town; by virtue of his position he is also a member of the County Board of Supervisors. This board of fifteen constitutes the County's legislative body. Up to 1965 each supervisor had one vote regardless of the population of the town he represented even though then, as now, townships varied greatly in population.³ This disparity led to litigation.

In 1965 it was held in Shilbury v. Board of Supervisors⁴ that the Board of Supervisors, as made up of the fifteen town supervisors, was unconstitutional and in violation of the one person one vote principle as enunciated by the Supreme Court of the United States in Baker v. Carr⁵ and its progeny.⁶ The decree entered upon that ruling by then State Supreme Court Justice and now Chief Judge of the New York State Court of Appeals, Lawrence Cooke, provided that the existing Board of Supervisors continue in office and that a valid plan of apportionment for the Board of Supervisors be adopted in time for the general election of 1967. Thereafter, a local law was adopted by referendum under which the Board was reapportioned on an adjusted weighted voting plan in accordance with the population distribution of the last census. In the judgment entered on September 20, 1967, in the Shilbury action, Justice Cooke approved the plan as "constitutional and valid." This plan remained in effect until after the publication of the 1970 census county data when adjustments were made to take into account population changes. In 1982, based upon the 1980 census figures, the Board, after public hearings, adopted Local Law No. 6 pursuant to Section 10 of the Municipal Home Rule Law of New York State ("Section 10"), which was passed in 1969 and authorizes weighted voting as a valid method of reapportionment of votes of Boards of Supervisors of Counties.⁷

The two actions now before the Court are brought by different plaintiffs with different objectives. In one, commenced by Fred Haas and four other citizens and residents of Rockland, Callicoon, Liberty and Fallsburg, towns within Sullivan County ("Haas action"),⁸ they attack Section 10 and Local Law No. 6 as unconstitutional per se. The second action, by Dennis Greenwald and other named plaintiffs, individually and as supervisors of the towns of Mamakating and Thompson within Sullivan County, ("Greenwald action")⁹ seek to declare Local Law No. 6 unconstitutional as applied because: (1) it is based on population figures containing substantial numbers of nonresidents; and (2) it does not permit representatives of one third of the population plus one to prevent the adoption of a two-thirds resolution where required. The Greenwald plaintiffs, however, do not challenge the constitutionality of weighted voting plans per se, and request that Local Law No. 6 remain in effect until the Board has adopted a new reapportionment plan pursuant to an order of this Court.

All parties move for summary judgment pursuant to Fed.R.Civ.P. 56, alleging there are no disputed issues of material fact.

THE HAAS ACTION

The plaintiffs make a frontal attack on all weighted voting plans. As stated by them, it is their "simple and sole contention ... that `weighted-voting' per se is unconstitutional, period."¹⁰ The argument rests upon a contention that weighted voting does not satisfy the one person one vote requirement. At the outset it is noted that the one person one vote principle applies to elective legislative bodies exercising general governmental powers at the county and town level, the subject of this action.¹¹ Also, despite plaintiff's ipse dixit of the per se invalidity of adjusted voting plans of reapportionment, they have been recognized as a legal method of legislative apportionment.¹² Indeed, the Supreme Court has noted that the constitutional principles that govern the apportionment of state legislatures are not necessarily applicable to the organization of local legislative bodies. "Viable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions. We see nothing in the Constitution to prevent experimentation."¹³

Adjusted weighted voting has been recognized as a means of overcoming malapportionment of representation in local legislative bodies and to assure that sparsely populated areas of a political unit of government have a voice in the councils of government.¹⁴ In substance it allocates voting power among members of a governmental body so as to offset the differences in the size of the constituency of each representative. It is designed to allocate voting power to a legislator based upon the percentage of the residents of the County residing in his town. It accomplishes this by allocating voting power to each representative of a constituency in such a manner that the power of the representative to affect the outcome of votes in the theoretical number of possible voting combinations is equal to the proportion the population his town bears to the total population.¹⁵ For such a system to be valid, "a legislator's voting power, measured by the mathematical possibility of casting his decisive vote, must approximate the power he would have in a legislative body which did not employ weighted voting."¹⁶ The mathematics of such a system are complex and require sophisticated computer analyses. "Ideally, however, it should be 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."¹⁷

In Iannucci v. Board of Supervisors¹⁸ the New York State Court of Appeals recognized "adjusted weighted voting plans" as a constitutional method of local legislative apportionment. However, the Court noted that:

The significant standard for measuring a legislator's voting power ... is not the number or fraction of votes which he may cast but, rather, his "ability ..., by his vote, to affect the passage or defeat of a measure." ...

Of course, in any weighted voting scheme, those representatives who cast the larger aggregates of votes can be expected to have greater influence with their colleagues than representatives with only a single vote. We find nothing unconstitutional in a disparity of influence among the various members of a county board of supervisors....

The principle of one man-one vote is violated, however, when the power of a representative to affect the passage of legislation by his vote, rather than by influencing his colleagues, does not roughly correspond to the proportion of the population in his constituency.¹⁹

It was in response to this ruling that in 1969 the Legislature added sub-part 13 to section 10 of the Municipal Home Rule Law, which authorizes weighted voting as a method of reapportionment for representation on county Boards of Supervisors and other units of government here under attack by plaintiff as unconstitutional.²⁰

Subsequent New York State Court of Appeals cases continue to uphold the concept of adjusted weighted voting....