Morris v. Board of Estimate, 1101

• Decision Date: 16 May 1983
• Docket Number: No. 1101,D,1101
• Citation: 707 F.2d 686
• Parties: Beverly MORRIS, Joy Clarke Holmes, Joanne Oplustil, Plaintiffs-Appellants, v. The BOARD OF ESTIMATE, The City of New York, Edward I. Koch, individually and as Mayor of the City of New York, Carol Bellamy, individually and as City Council President, Harrison J. Goldin, individually and as Comptroller for the City of New York, Howard Golden, Andrew Stein, Stanley Simon, Donald Manes, Anthony Gaeta, each individually and as Borough Presidents of the boroughs of the City of New York, Defendants-Appellees, and Frank V. Ponterio, Intervenor-Defendant-Appellee. ocket 83-7007.
• Court: U.S. Court of Appeals — Second Circuit

Page 686

707 F.2d 686

Beverly MORRIS, Joy Clarke Holmes, Joanne Oplustil, Plaintiffs-Appellants, v. The BOARD OF ESTIMATE, The City of New York, Edward I. Koch,

individually and as Mayor of the City of New York, Carol

Bellamy, individually and as City Council President,

Harrison J. Goldin, individually and as Comptroller for the

City of New York, Howard Golden, Andrew Stein, Stanley

Simon, Donald Manes, Anthony Gaeta, each individually and as

Borough Presidents of the boroughs of the City of New York,

Defendants-Appellees,

and

Frank V. Ponterio, Intervenor-Defendant-Appellee.

No. 1101, Docket 83-7007.

United States Court of Appeals, Second Circuit.

Argued April 4, 1983.

Decided May 16, 1983.

Richard Emery, New York City (Arthur Eisenberg, New York Civil Liberties Union, New York City, on the brief), for plaintiffs-appellants.

Judith A. Levitt, New York City (Frederick A.O. Schwarz, Jr., Corp. Counsel, Leonard Koerner, Susan D. Rosenberg, New York City, on the brief), for defendants-appellees.

Frank V. Ponterio, Staten Island, N.Y., for intervenor-defendant-appellee, pro se.

Terence H. Benbow, New York City (Alan Rothstein, New York City, on the brief), for amicus curiae Citizens Union of the City of New York.

Before KAUFMAN and NEWMAN, Circuit Judges, and LASKER, District Judge. ^*

LASKER, District Judge.

This appeal presents the question whether the equal protection principle of one person, one vote is applicable to the election of members of the New York City Board of Estimate.

The Board of Estimate ("the Board") is one of the governing bodies of New York City. It exercises a wide range of powers, including the power to negotiate and enter all contracts on behalf of the city; to approve or modify all zoning decisions for the city; to set tax abatements; and to determine the use and development of all property owned by the city. In addition, in conjunction with the City Council, the Board recommends and approves the city's expense and capital budgets. ¹

The Board has eight members. Three of the members, the Mayor, the Comptroller and the President of the City Council, are elected by the votes of the entire city electorate. The other members are the Borough Presidents of New York City's five boroughs: the Bronx, Brooklyn, Manhattan, Queens and Richmond (Staten Island). The Borough Presidents are elected only by the voters of their respective boroughs.

The boroughs of New York vary greatly in population. According to the 1980 census, Brooklyn, the largest, had a population of approximately 2.2 million, while the population of Staten Island, the smallest, was slightly over 350,000. Appellants claim that the system by which voters of geographical units of substantially different populations send the same number of representatives to the Board violates the Equal Protection Clause of the Fourteenth Amendment. Appellants, residents and voters of Brooklyn, contend that as a result of the present voting scheme, voters in Staten Island have six times the voting strength of Brooklyn voters.

In the district court, 551 F.Supp. 652, the principal parties cross-moved for summary judgment on agreed facts. Summary judgment was opposed by Frank Ponterio, a resident and voter of Staten Island, who had been permitted to intervene. The court granted appellees' motion for summary judgment, concluding that the Board is neither an elective nor a legislative body, and that, accordingly, under Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), and Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), the constitutional principle of one person, one vote was inapplicable.

The district court determined that the Board is not an elective body because no independent election is held to select the Board's members; rather, the Board "consists of a group of public officials who are already constitutionally elected to their respective offices as required by law." In addition, the district court, in reliance on Sailors v. Board of Education, supra, determined that the Board's primarily non-legislative character removed it from the reach of the Equal Protection Clause.

Appellants challenge the district court's conclusion that the Board is not an elected body, arguing that because the members of the Board become Board members as a matter of law upon election, they are in fact and law "elected" to their respective positions. They further contend that the proper question is not whether the Board executes legislative tasks, but whether it exercises general governmental functions. Finally, appellants argue that the voting disparities created by the present electoral scheme are far greater than permissible under the Equal Protection Clause and such cases as Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971) and Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973).

Appellees contend that the Board members sit on the Board "ex officio" and accordingly are not elected to the Board itself. They argue further that this Court should defer to the decision of the New York Court of Appeals in Bergerman v. Lindsay, 25 N.Y.2d 405, 306 N.Y.S.2d 898, 255 N.E.2d 142 (1969), appeal dismissed and cert. denied, 398 U.S. 955, 90 S.Ct. 2173, 26 L.Ed.2d 540 (1970), which upheld the constitutionality of the Board's electoral scheme as it was at the time. Finally, appellees urge that the unique nature of the Board presents the type of "special circumstances" that the Supreme Court has indicated may justify "departures from strict equality" of the one person, one vote rule under Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971).

Intervenor-Appellee Ponterio defends the district court's grant of summary judgment and further contends that if the one person, one vote rule applies to the Board, substantial questions of fact are presented as to whether the present scheme in fact results in disproportionate voting power as between voters of different boroughs, and, if so, to what extent.

I.

In Hadley v. Junior College District, 397 U.S. 50, 56, 90 S.Ct. 791, 795, 25 L.Ed.2d 45 (1970), the Supreme Court held "that as a general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election ..." Accordingly, our primary task is to determine whether the Board of Estimate is selected "by popular election" and whether it performs "governmental functions."

In finding the Board to be an appointed body, the district court relied primarily on Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), in which the Supreme Court held the one person, one vote standard inapplicable to a county school board which was selected by a process described as "basically appointive rather than elective." Id. at 109, 87 S.Ct. at 1552. In Sailors, voters in local districts elected local school boards. Each local board then sent a delegate to a biennial meeting at which the county board was elected. As the Court explained: "there is not even a formal method by which a delegate [from a local school board] can determine the preferences of the people in his district. It is evident, therefore, that the membership of the county board is not determined, directly or indirectly, through an election in which the residents of the county participate." Id. at 110 n. 6, 87 S.Ct. at 1553 n. 6.

Unlike the county school board members in Sailors, the members of the Board of Estimate are directly elected by the voters. Upon election to their respective positions, they automatically become Board members as a matter of law. Section 61 of the City Charter specifies:

"The mayor, the comptroller, the president of the council and the presidents of the boroughs shall constitute the board of estimate."

(emphasis added).

It follows that the Board of Estimate is not an appointed body; its membership is definitively determined by election and by election alone.

Moreover, the question of applicability of the Equal Protection Clause to "ex officio" boards was settled in this Circuit in Bianchi v. Griffing, 393 F.2d 457 (2d Cir.1968). In Bianchi, we held the one person, one vote principle applicable to a county board of supervisors selected in a manner virtually indistinguishable from the process by which the Board of Estimate is chosen. The board at issue in Bianchi consisted of elected town supervisors who served on the county board as "delegates" of their towns. The language used in rejecting the appellee's argument in Bianchi describes the situation presented here:

"The mere fact that board members may be characterized as 'delegates' and perform functions in addition to their duties on the board, does not provide a meaningful distinction ... We are impelled to the realistic recognition that a citizen entering the voting booth chooses at one and the same time a member of the Board of Supervisors and his town supervisor."

Id. at 461. Similarly, a citizen entering the voting booth in New York City "chooses at one and the same time" his Borough President and his Board of Estimate member. See also Rosenthal v. Board of Education, 497 F.2d 726, 729 (2d Cir.1974) ("Had election as a member of a local board served automatically to designate that elected member also as a member of a central high school board, the 'one man, one vote' concept would have been offended") (emphasis added).

Accordingly, we conclude that the Board of Estimate is selected by popular election.

II.

The question whether the Board of Estimate exercises "general" governmental functions which have "sufficient impact throughout the district," Hadley, supra, 397 U.S. at 54, 90 S.Ct. at 794, is answered by a review of the Board's duties. The Board, acting alone, must approve every lease, every franchise,...