Morris v. Board of Estimate

• Citation: 647 F. Supp. 1463
• Decision Date: 19 November 1986
• Docket Number: No. 81 CV 3920 (ERN).,81 CV 3920 (ERN).
• Parties: Beverly MORRIS; Joy Clarke Holmes; Joanne Oplustil, Plaintiffs, v. The BOARD OF ESTIMATE, the City of New York, Edward I. Koch, individually and as Mayor of New York, Andrew Stein, individually and as City Council President, Harrison J. Goldin, individually and as Comptroller for the City of New York, Howard Golden, David N. Dinkins, Stanley Simon, Clare Shulman, Ralph J. Lamberti, each individually and as Borough Presidents of the boroughs of the City of New York, Defendants, and Frank V. Ponterio, Intervenor-Defendant, Robert A. Straniere, individually and as a member of the New York State Assembly, Intervenor-Defendant.
• Court: U.S. District Court — Eastern District of New York

647 F. Supp. 1463

Beverly MORRIS; Joy Clarke Holmes; Joanne Oplustil, Plaintiffs, v. The BOARD OF ESTIMATE, the City of New York, Edward I. Koch, individually and as Mayor of New York, Andrew Stein, individually and as City Council President, Harrison J. Goldin, individually and as Comptroller for the City of New York, Howard Golden, David N. Dinkins, Stanley Simon, Clare Shulman, Ralph J. Lamberti, each individually and as Borough Presidents of the boroughs of the City of New York, Defendants, and Frank V. Ponterio, Intervenor-Defendant, Robert A. Straniere, individually and as a member of the New York State Assembly, Intervenor-Defendant.

No. 81 CV 3920 (ERN).

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

November 19, 1986.

Richard Emery, Arthur Eisenberg, New York Civil Liberties Union, New York City, for plaintiffs.

Frederick A.O. Schwarz, Jr., Corporation Counsel, City of New York, New York City by Susan R. Rosenberg.

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

Robert A. Straniere, Staten Island, N.Y., intervenor-defendant pro se.

Alan Rothstein, Citizens Union of New York, New York City, amicus curiae.

John J. Marchi, amicus curiae.

OPINION AND JUDGMENT

NEAHER, Senior District Judge.

This action challenges the constitutionality of the New York City Board of Estimate ("Board"). Familiarity with previous decisions herein is assumed. See Morris v. Board of Estimate, 551 F.Supp. 652 (E.D. N.Y.1982), rev'd, 707 F.2d 686 (2d Cir.1983), on remand, 592 F.Supp. 1462 (E.D.N.Y. 1984).

In brief summary, plaintiff residents of the Borough of Brooklyn instituted this action contending that, pursuant to sections 61 and 62 of the New York City Charter, the allocation of one vote to each Borough President, as members of the Board, contravened the "one person, one vote" rule of the United States Supreme Court because of the widely disparate populations each Borough President represented. This court, following the remand, applied the test adopted by the Supreme Court in Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971), and found a deviation of 132.9% as between the populations of Staten Island (Borough of Richmond) (352,121) and Brooklyn (2,230,936). Such a large deviation — more than 10 times that permitted in Abate (11.9%, coupled with a caution) — strongly signalled that the Board's present voting allocation is unconstitutional. Mindful, however, of the Court of Appeals' instruction that this court "rule on the policies and interests which the Supreme Court has held may justify deviations," Morris v. Board of Estimate, 707 F.2d at 690, the parties were directed to submit a joint stipulation setting forth:

"(1) those agreed valid policies and interests presently served by the Board; and

(2) those disputed policies and interests which at least one defendant maintains are valid and are presently served by the Board...."

592 F.Supp. at 1477 (emphasis in original).¹

DISCUSSION

I. Justification Burden

The Supreme Court has made it clear that the existence of malapportionment places the burden upon defendants. As the Supreme Court pointed out in Brown v. Thomson, 462 U.S. 835, 842-43, 103 S.Ct. 2690, 2696, 77 L.Ed.2d 214 (1983):

"A plan with larger disparities ... than 10% ... creates a prima facie case of discrimination and ... must be justified by the State."

Arguably, even were the disproportion explainable, defendants here might ultimately fail their justification task, since the Supreme Court has warned that immoderate inequalities may be intolerable whatever the meritorious objectives. See, e.g., Reynolds v. Sims, 377 U.S. 533, 581, 84 S.Ct. 1362, 1392, 12 L.Ed.2d 506 (1964) ("But if, even as a result of a clearly rational state policy ..., population is submerged as the controlling consideration in... apportionment ..., then the right of all... citizens to cast an effective and adequately weighted vote would be unconstitutionally impaired."); Gaffney v. Cummings, 412 U.S. 735, 744, 93 S.Ct. 2321, 2327, 37 L.Ed.2d 298 (1973) ("The larger variations from substantial equality are too great to be justified by any interest so far suggested.").

Those warnings together with the huge 132.9% inequality afford a basis for the formidable charge by Citizens Union that the Board's voting plan is facially unconstitutional. See, e.g., Preisler v. Mayor of St. Louis, 303 F.Supp. 1071, 1075 (E.D.Mo. 1969) (The 135% deviation for aldermanic wards was beyond excusing.).

Still, despite its admonitions, the Supreme Court has never established a figure for per se illegality. Thus, in Mahan v. Howell, 410 U.S. 315, 329, 93 S.Ct. 979, 987, 35 L.Ed.2d 320 (1973), the Virginia House of Delegates' 16.4% rationalized deviation was sanctioned, a guarded approval being left indefinite by the Supreme Court's comment that:

"While this percentage may well approach tolerable limits, we do not believe it exceeds them."

More recently, in Brown v. Thomson, 462 U.S. at 846-48, 103 S.Ct. at 2697-99, the majority upheld a plan for the Wyoming House of Representatives, the question presented having excluded an 89% disproportion from consideration. Joining that circumscribed decision, Justice O'Connor nonetheless emphasized that "clearly some outer limit" to acceptable disparities exists. Id. at 849-50, 103 S.Ct. at 2699-2700 (O'Connor, J., concurring).

Like the Mahan comment, however, Justice O'Connor's did not specify that "outer limit", obviously because one has not been set. In other words, though consistent with the cautionings against large deviations, these comments indirectly underscore that:

"The Supreme Court has never enunciated specific maximum variations which will invalidate a reapportionment...."

Boyer v. Gardner, 540 F.Supp. 624, 629 (D.N.H.1982).

Viewed in that light, not reaching the yet unquantified question of facial unconstitutionality — if possible — is preferable and actually follows the Supreme Court's example.

"We are doubtful ... that the deviations for the Texas House of Representatives evident here about 26% are the kind of `minor' variations which Reynolds v. Sims indicated might be justified by ... the maintenance of established political subdivisions .... ... But we need not reach that constitutional question, for we are not convinced that the announced policy ... necessitated the range of deviations between legislative districts....... Among other deficiencies in its findings, the District Court did not articulate any satisfactory grounds for rejecting at least two other plans ..., which respected county lines but which produced substantially smaller deviations from the principles of Reynolds v. Sims."

Kilgarlin v. Hill, 386 U.S. 120, 123-24, 87 S.Ct. 820, 822-23, 17 L.Ed.2d 771 (1967). Fortunately, that restrained approach settles the equal protection challenge here. As will be seen, defendants fail their justification burden short of the per se query.

A. Issues

As pointed out in Brown v. Thomson, 462 U.S. at 843, 103 S.Ct. at 2696 (quoting Mahan v. Howell, 410 U.S. at 328, 93 S.Ct. at 987) the general justification stage investigation is:

"whether the legislature's plan `may reasonably be said to advance a rational state policy' and, if so, `whether the population disparities among the districts that have resulted from the pursuit of this plan exceed constitutional limits.'"

Dissenting in Brown v. Thomson, 462 U.S. at 852, 103 S.Ct. at 2701, Justice Brennan elaborated upon that basic inquiry. After a prima facie 10% variance demonstration, the remaining steps are:

"Second, a court must consider the quality of the reasons advanced by the State to explain the deviations. Acceptable reasons must be `legitimate considerations incident to the effectuation of a rational state policy,' Reynolds v. Sims, 377 U.S. 533, 579 84 S.Ct. 1362, 1391, 12 L.Ed.2d 506 (1964) , and must be `free from any taint of arbitrariness or discrimination,' Roman v. Sincock, 377 U.S. 695, 710 84 S.Ct. 1449, 1458, 12 L.Ed.2d 620 (1964). See Mahan v. Howell, 410 U.S. 315, 325-26 93 S.Ct. 979, 985-86, 35 L.Ed.2d 320 (1973). Third, the State must show that `the state policy urged ... to justify the divergences... is, indeed, furthered by the plan.' id., at 326 93 S.Ct. at 986. This necessarily requires a showing that any deviations from equality are not significantly greater than is necessary to serve the State's asserted policy; if another plan could serve that policy substantially as well while providing smaller deviations from equality, it can hardly be said that the larger deviations advance the policy. See e.g., Kilgarlin v. Hill, 386 U.S. 120, 123-24 87 S.Ct. 820, 822-23, 17 L.Ed.2d 771 (1967); Mahan, supra, 410 U.S., at 319-20, 326 93 S.Ct. at 982-83, 986 Connor v. Finch, 431 U.S. 407, 420-21 97 S.Ct. 1828, 1836-37, 52 L.Ed.2d 465 (1977). Fourth, even if ... the deviations... are justified ..., the court must nevertheless consider whether they are small enough to be constitutionally tolerable. ... Mahan, supra, 410 U.S., at 326 93 S.Ct. at 986."

As a minority opinion, Justice Brennan's explication is not controlling. In a larger perspective, however, his detailed guide is consistent with the majority's broad statement and cogently distills the Supreme Court's antecedent body of law.

Looking to that guide, the first step (the malapportionment stage) has been taken and the fourth (essentially a per se evaluation) will not be for reasons just given. The second and third steps are left, their respective issues being whether defendants' proffered policies and interests are valid concerning the Board, and if so, whether its current voting plan furthers them.

Regarding the validity issue, the Supreme Court has not precisely defined the characteristics of legitimate goals. See Reynolds v. Sims, 377 U.S. at 579, 84 S.Ct. at 1390; Roman v. Sincock, 377 U.S. at 710, 84 S.Ct. at 1458 (both quoted in Brown v. Thomson, 462 U.S. at 852, 103 S.Ct. at 2701, supra pp. 1466-67). See also Swann v....