Iannucci v. Board of Sup'rs of Washington County

• Decision Date: 07 July 1967
• Parties: , 229 N.E.2d 195 Jerry IANNUCCI et al., Respondents, v. BOARD OF SUPERVISORS OF the COUNTY OF WASHINGTON, Appellant, and State of New York, Respondent. SARATOGIAN, INC., et al., Respondents, v. BOARD OF SUPERVISORS OF the COUNTY OF SARATOGA, Appellant; State of New York et al., Respondents, and Harry D. Snyder, Jr., as Supervisor of the City of Saratoga Springs, Intervenor Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 502

282 N.Y.S.2d 502

20 N.Y.2d 244, 229 N.E.2d 195

Jerry IANNUCCI et al., Respondents, v. BOARD OF SUPERVISORS OF the COUNTY OF WASHINGTON, Appellant, and State of New York, Respondent.

SARATOGIAN, INC., et al., Respondents, v. BOARD OF SUPERVISORS OF the COUNTY OF SARATOGA, Appellant;

State of New York et al., Respondents, and Harry

D. Snyder, Jr., as Supervisor of the

City of Saratoga Springs,

Intervenor Respondent.

Court of Appeals of New York.

July 7, 1967.

Julian V. D. Orton, County Atty., for appellant in the first above-entitled action.

Harold R. Moore, Jr., Hudson Falls, for Jerry Iannucci and another, respondents in the first above-entitled action.

Louis J. Lefkowitz, Atty. Gen. (Robert W. Imrie, Ruth Kessler Toch, Albany, and Herbert H. Smith, Waverly, of counsel), for State.

Edward A. Tracy, County Atty., for appellant in the second above-entitled action.

William L. Ford, Saratoga Springs, for Saratogian, Inc., and another, respondents in the second above-entitled action.

David A. Wait, Saratoga Springs, for Common Council of City of Saratoga Springs, respondent in the second above-entitled action.

Harry D. Snyder, Jr., Saratoga Springs, intervenor-respondent in pro. per.

John F. Banzhaf III, amicus curiae.

Richard C. Cahn, Huntington, for the Towns Huntington, Babylon, Brookhaven, Islip and Smithtown, New York, amici curiae.

FULD, Chief Judge.

In these two reapportionment cases, the courts below have struck down as unconstitutional the weighted voting plans which had been proposed to correct the conceded malapportionment of the Boards of Supervisors of Washington and Saratoga Counties.

In the Washington County case, the plaintiffs are residents, taxpayers and property owners of the Town of Kingsbury and, in the Saratoga County case, the plaintiffs are property owners and taxpayers of the City of Saratoga Springs. In each case, they instituted these actions seeking (1) a declaratory judgment that the apportionment of the Board of Supervisors of their respective county was unconstitutional and (2) an order directing the board to submit a valid plan of apportionment. It is not disputed that, at present, as prescribed by section 150 of the County Law, Consol.Laws, c. 11, the municipalities in each county are equally represented by one member on the Board of Supervisors, even though there is a great disparity in the populations of the several towns and cities. ¹

In the Washington County litigation, the court at Special Term held that the apportionment of the board and section 150 of the County Law, as applied, violated the one man-one vote rubric and were, accordingly, unconstitutional. The board was directed to prepare and submit a permanent plan of reapportionment but was permitted, in the interim, to function as it was presently constituted. The board thereupon adopted what it terms an 'Adjusted Weighted Voting Plan' which provides that each town is to be represented on the board by at least one supervisor who will be entitled to cast one vote for every 279 persons residing in the town, up to a maximum of 15 votes. The membership of the board would be enlarged to allow for additional supervisors from those towns with populations large enough to warrant more than 15 votes. Thus, Kingsbury, the largest town, would be represented by three supervisors who would each cast 13 votes, for a total of 39. Dresden, Hampton and Putnam, the smallest towns, would each be represented by one supervisor who would cast two votes and the most votes cast by any single member of the board would be the 14 allotted to the supervisor from Greenwich.

Shortly after the action was commenced in Saratoga County, its Board of Supervisors adopted a so-called 'Fractional-Weighted Voting Plan' which, generally speaking, follows the same pattern as the one for Washington County. This plan provides that each town and city will be represented on the board by at least one supervisor who will be entitled to cast one vote for every 600 persons residing in the municipality, up to a maximum of 20 votes. The membership of the board would be enlarged to allow for an additional supervisor from Saratoga Springs which has a population large enough to warrant more than 20 votes. More specifically, Saratoga Springs would be represented by two supervisors who would each cast 14 votes for a total of 28, while Providence, Edinburg and Day, the smallest towns, would each be represented by one supervisor who would cast one vote; the most votes cast by any single member of the board would be the 16 allotted to the supervisor from the Town of Moreau.

The court at Special Term found each weighted voting plan unacceptable, on constitutional grounds, because, in its words, the plan, in practice, 'virtually strips the smaller towns of a true voice on the board.' Each board was ordered to submit a plan other than one involving weighted voting and the Appellate Division affirmed both orders. ²

There is no doubt that, as presently constituted, both Boards of Supervisors are malapportioned. Equal representation on the boards of municipalities with populations that vary from a few hundred to many thousands does not satisfy the 'one person, one vote' principle announced in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 and, although the United States Supreme Court has not as yet passed upon the question (see, e.g., Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656; Avery v. Midland County, 406 S.W.2d 422 (Tex.), cert. granted 388 U.S. 905, 87 S.Ct. 2106, 18 L.Ed.2d 1345), we have expressly held that the rule of the Sims case applies to local 'elective legislative bodies exercising general governmental powers'. (Seaman v. Fedourich, 16 N.Y.2d 94, 101, 262 N.Y.S.2d 444, 449, 209 N.E.2d 778, 782; see, generally, Weinstein, The Effect of the Federal Reapportionment Decisions on Counties and Other Forms of Municipal Government, 65 Col.L.Rev. 21.) The present imbalance on the boards is directly attributable to the County Law which provides that the supervisors of the several cities and towns in each county, without regard to population differences, 'shall constitute the board of supervisors of the county' (§ 150) and that the board shall conduct its business 'by the affirmative vote of a majority of (its) total membership' (§ 153, subd. 4). Quite clearly, therefore, these sections of the County Law, as applied to Saratoga and Washington Counties, are violative of constitutional requirements. (See Michl v. Shanklin, 17 N.Y.2d 906, 272 N.Y.S.2d 130, 218 N.E.2d 897; cf. Graham v. Board of Supervisors of Erie County, 18 N.Y.2d 672, 273 N.Y.S.2d 419, 219 N.E.2d 870; see, also, McGill v. Board of Supervisors of Niagara County, 19 N.Y.2d 860, 280 N.Y.S.2d 592, 227 N.E.2d 406.) In the absence of a valid statute establishing the organization and composition of the Boards of Supervisors of those counties, the boards should be directed to reapportion themselves in accordance with the powers granted to them by the Municipal Home Rule Law (§ 10, subd. 1, par. (ii), cl. a, subcl. (1)).

The Supreme Court recently observed that all of the constitutional principles which govern the apportionment of state legislatures are not necessarily applicable to the organization of local governments. In Sailors v. Board of Educ., 387 U.S. 105, 110, 87 S.Ct. 1549, 1553, 18 L.Ed.2d 650, the court remarked:

'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.'

And, in Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, supra, the court approved Virginia Beach's 'experimentation' in local government. The City of Virginia Beach had consolidated with an adjoining county, which was both rural and urban, under a borough form of government. A plan was adopted, by which all of the members of the City Council were elected at large, it being provided, however, that at least one councilman was required to reside in each of the city's seven boroughs. This plan was said to properly 'reflect a detente between urban and rural communities that may be important in resolving the complex problems of the modern megalopolis' (387 U.S., at p. 117, 87 S.Ct. at p. 1556; see, also, Matter of Blaikie v. Power, 13 N.Y.2d 134, 243 N.Y.S.2d 185, 193 N.E.2d 55, app. dismd. 375 U.S. 439, 84 S.Ct. 507, 11 L.Ed.2d 471).

It might appear, on first impression, that the modified weighted voting plans before us were designed to accomplish almost the same objective as the scheme underlying the Virginia Beach plan--namely, to assure that sparsely populated areas have a voice in the councils of government. However, as we noted in the Graham case (18 N.Y.2d 672, 674, 273 N.Y.S.2d 419, 219 N.E.2d 870, supra), any method of allocating votes among representatives in proportion to population is liable to have hidden 'inherent defects'. Although the small towns in a county would be separately represented on the board, each might actually be less able to affect the passage of legislation than if the county were divided into districts of equal population with equal representation on the board and several of the smaller towns were joined together in a single district. (See Banzhaf, Weighted Voting Doesn't Work: A Mathematical Analysis, 19 Rutgers L.Rev. 317.) The significant standard for measuring a legislator's voting power, as Mr. Banzhaf points out, 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' (19 Rutgers L.Rev., at p. 318). And he goes on to demonstrate that a weighted voting plan, while apparently distributing this voting power in proportion to population, may actually operate to deprive the smaller towns of what little voting power they possess, to such an extent that some of them might be...