Lodico v. Board of Supervisors of County of Rockland

• Decision Date: 20 May 1966
• Docket Number: No. 65-Civ. 2361.,65-Civ. 2361.
• Citation: 256 F. Supp. 442
• Parties: John LODICO, Sr., Plaintiff, v. BOARD OF SUPERVISORS OF the COUNTY OF ROCKLAND, Defendant, and Town of Clarkstown, Intervenor.
• Court: U.S. District Court — Southern District of New York

256 F. Supp. 442

John LODICO, Sr., Plaintiff, v. BOARD OF SUPERVISORS OF the COUNTY OF ROCKLAND, Defendant, and Town of Clarkstown, Intervenor.

No. 65-Civ. 2361.

United States District Court S. D. New York.

May 20, 1966.

Roland, Hurley & Fox, Stony Point, N. Y., for plaintiff; Frederick P. Roland, Stony Point, N. Y., of counsel.

J. Martin Cornell, County Atty., for defendant.

Donald S. Tracy, Town Atty., for intervenor.

Louis J. Lefkowitz, Atty. Gen. of State of New York, Daniel M. Cohen, Asst. Atty. Gen.

MEMORANDUM OPINION

CROAKE, District Judge.

Plaintiff, a resident of the Town of Clarkstown, County of Rockland, State of New York, brought this action in the New York State Supreme Court in and for his county, seeking a declaratory judgment

"that Article 4 of the County Law McKinney's Consol.Laws, c. 11 of the State of New York * * * is illegal, invalid, void and unconstitutional"¹ and

"that the defendant immediately reconstitute and formulate a plan wherein and whereby the vote of the BOARD OF SUPERVISORS be proportionate to the number of persons each member represents in relation to the Township and the County population respectively."

After removal by the defendant, the plaintiff moved for summary judgment and the defendant sought to:

(1) add parties claimed to be indispensable, the State of New York, and the other towns in the county, contending that the county cannot reapportion without enabling legislation of the state and that any order of the court will directly affect the five towns in the county, and (2) refer "the motion to be heard and determined by a district court of three judges on the ground that the constitutional questions are such that the appeal from any order should be directly to the U. S. Supreme Court."

The intervenor supported the application of the defendant. The motions came on to be heard before the undersigned in the motion part of this court on November 16, 1965, and after some consideration, in a memorandum filed January 17, 1966, the request to convene a panel was granted and the remaining applications were denied without prejudice to renewal before the panel. In an order filed simultaneously with the memorandum, the Hon. J. Edward Lumbard, Chief Judge of the Court of Appeals for this Circuit designated that the Hon. Leonard P. Moore, United States Circuit Judge, and the Hon. Dudley B. Bonsal, United States District Judge for the Southern District of New York, sit with the undersigned in the statutory court. Argument was heard by the panel on February 16, 1966, and in a per curiam opinion filed simultaneously herewith, the matter was resubmitted to me.

It is the practice of the undersigned to confine opinions to only those matters upon which comment must of necessity be made. However, in the instant circumstances, in the light of the importance of the approach manifested by the statutory court, and in view of the full and hearty agreement of this court with that approach, the temptation to speak shall not be resisted.

In the Suffolk County Reapportionment case, Bianchi v. Griffing, 238 F. Supp. 997 (E.D.N.Y.1965), app. dismissed, 382 U.S. 15, 86 S.Ct. 52, 15 L.Ed. 2d 11 (1965), the court retained

"jurisdiction of the action with leave to the plaintiffs, in the event an appropriate governing body has not been created for Suffolk County within the permitted standards for representation, to apply for further relief. At this time, it cannot be said that the legislature is unaware of the problem nor, in the light of current court pronouncements, can it now be said that it has failed to act." 238 F.Supp. 1005.

Though noting that,

"Many cases have been pending in the Supreme Court and in other courts arising out of the decision in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) but despite the plethora of cases filed and the Supreme Court decisions of June 1964, there has been found no Supreme Court case which overturns the principle announced by that Court that section 2281 does not apply where `although the constitutionality of a statute is challenged, the defendants are local officers and the suit involves matters of interest only to the particular municipality or district involved.' Ex parte Collins, 277 U.S. 565, 568, 48 S.Ct. 585, 586, 72 L.Ed. 990 (1928).

the court manifestly held appropriate the convening of a three-judge court.

The "one-man-one-vote" principle was held applicable to the legislative bodies at a lesser than state level. It was stated that:

"Although no state officer is named as a defendant in this suit and even though we were completely satisfied (which we are not) that no activity of the Board of Supervisors touches upon state interests, it would be unrealistic to ignore the similarity which exists between the selection of state and county legislative bodies. In county-wide administration, just as in state-wide administration, the inhabitants of the populous areas should not be governed by representatives drawn from other and thinly populated areas." 238 F.Supp. at 1004.²

The court spoke at length upon the inappropriateness of intervention by it at that juncture. See 238 F.Supp. 1004-1005. An appeal on behalf of the Board of Supervisors was taken. Plaintiffs appellees moved to dismiss and that motion was granted and "the appeal * * * dismissed for want of jurisdiction." 382 U.S. 15, 86 S.Ct. 52 (per curiam).³

Suffolk County may be compared with Rockland⁴ as follows:⁵

                                                        Least No.                    % of Total
                Name & Population of                    Who Elect                    Population
                Smallest & of Largest      Ratio of     Maj. of                      Electing a
                Cities, Towns, or          Largest to   Board of        Total        Majority of
                Wards Represented          Smallest     Supervisors     Population   Board     
                SUFFOLK
                 Shelter Island    1,312   131.8        6/10  115,161   666,784         17
                 Islip           172,959
                ROCKLAND
                 Stony Point       8,739
                 Orangetown       42,172     4.9        3/5    58,567   136,803         43
                

For all counties in the state, the average ratio of largest represented town, etc., to smallest, is 32.3. The lowest figure is 3.2, for the County of Putnam. The highest ratio is 203.8, in the County of St. Lawrence. The Suffolk figure is the second highest, and the Rockland ratio, the fourth lowest.⁶ There are only seven other counties with a ratio of less than 10:1.

The average percentage of the total population electing a majority of a board of supervisors is 27. The highest figure is that in Putnam County, 50, and the lowest, 17, in the counties of Franklin, Herkimer and Suffolk. The Rockland figure of 43 is the third highest in the state. There are no other counties for which the percentage is higher than 40 and only eight others in which the percentage is 35 or above.

As stated at the hearing before the panel, the defendant does not question the existence of a disparity warranting correction. Rather, argument is directed toward the propriety of intervention by the court at this time, support is asserted for the one-man-one-vote principle, and stress placed upon the affirmative action thus far taken in an effort to remedy the malapportionment.

As to the matter of affirmative action, it is urged that there is an absence of legal authority by which the county may reapportion itself, that on December 1, 1964, a Charter Study Commission was created for the purpose of considering the formation of a County Charter, that on July 20, 1965, the Board of Supervisors adopted Res. No. 402, providing for the creation of a reapportionment commission, which Commission is presently studying the matter. It is stated the latter Commission had been created in anticipation of enactment of legislation passed by the State Legislature just prior to the close of the session in July which would have given counties such as Rockland the authority to reapportion themselves pursuant to home rule. However, the measure was vetoed by the Governor. It is asserted that the Commission has continued to act so that upon the passage of new legislation, the Board may be better prepared to act. Robert P. Slocum, elected Supervisor of the Town of Stony Point and Chairman of the Board, in a telegram to the Counsel to the Governor dated July 13, 1965, "urgently requested the Governor to give serious consideration to approving legislation passed recently by the State Legislature setting guidelines for counties without charters to reapportion and establish county legislatures by 1967." On September 7, 1965, the Board passed Resolution No. 456, requesting the Governor "to call an immediate special session of the New York State Legislature * * * for the purpose of passing legislation which will allow the Counties of the State of New York to implement the one-man, one-vote decision of the United States Supreme Court."

In an affidavit dated February 4, 1966, Frank Strauss, Executive Assistant to the Chairman of the County Board of Supervisors and Chairman of the Reapportionment Commission of the County, states that:

"The commission has been meeting regularly since its creation in July of 1965, and at the present time the commission has been considering three possible plans for reapportionment of the County of Rockland. At the last regular meeting, held on January 26th, 1966, the commission considered a draft of a proposed plan, a copy of which is attached. * * * This plan was discussed in detail at the meeting and certain revisions were made which are in the process of being incorporated in a revised plan. * * * It is anticipated that the Reapportionment Commission will submit at least three proposed plans to the Board of Supervisors of the County of Rockland for their consideration within the next thirty to sixty days. It is anticipated that the Board of Supervisors will select one of the plans to be placed in final form for the purpose of reapportioning the County of Rockland.

"* * *

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