O'SULLIVAN v. Mundt

• Decision Date: 15 September 1969
• Docket Number: No. 69 Civ. 3814.,69 Civ. 3814.
• Citation: 308 F. Supp. 1090
• Parties: Application of Cornelius T. O'SULLIVAN, Ichabod F. Scott and Michael J. Clarke, as individuals and as Representatives of Others Similarly Situated, Plaintiffs v. Paul F. MUNDT, Philip J. Rotella, John B. Lovett, John F. McAlevey, Harold K. Grune, constituting the Board of Supervisors of the County of Rockland, the County of Rockland, and Charles Furst and Arthur Ackerman, as Commissioners of the Board of Elections of the County of Rockland, and the Board of Elections of Rockland County, Defendants, and Samuel J. Abate, as a Taxpayer of the County of Rockland, and as a Representative of Others Similarly Situated, June Molof, Mindy Baker, Gloria English, Joyce Braziller, Linda Berns and Judy Bartosik, as Individuals and as Representatives of Others Similarly Situated, Party-Defendants.
• Court: U.S. District Court — Southern District of New York

308 F. Supp. 1090

Application of Cornelius T. O'SULLIVAN, Ichabod F. Scott and Michael J. Clarke, as individuals and as Representatives of Others Similarly Situated, Plaintiffs v. Paul F. MUNDT, Philip J. Rotella, John B. Lovett, John F. McAlevey, Harold K. Grune, constituting the Board of Supervisors of the County of Rockland, the County of Rockland, and Charles Furst and Arthur Ackerman, as Commissioners of the Board of Elections of the County of Rockland, and the Board of Elections of Rockland County, Defendants and Samuel J. Abate, as a Taxpayer of the County of Rockland, and as a Representative of Others Similarly Situated, June Molof, Mindy Baker, Gloria English, Joyce Braziller, Linda Berns and Judy Bartosik, as Individuals and as Representatives of Others Similarly Situated, Party-Defendants.

No. 69 Civ. 3814.

United States District Court S. D. New York.

September 15, 1969.

Paul H. Rivet, Orangeburg, N. Y., for plaintiffs.

J. Martin Cornell, County Atty., County of Rockland, New City, N. Y., for defendants Paul F. Mundt, and others.

Barr & Barone, Spring Valley, N. Y., for party-defendant Samuel J. Abate.

Doris Friedman Ulman, Spring Valley, N. Y., for party-defendants Judy Molof, Mindy Baker, Gloria English, Linda Berns and Judy Bartosik.

MEMORANDUM

LASKER, District Judge.

Plaintiffs move for an injunction setting aside, pending determination by the New York State Court of Appeals, a reapportionment plan for the election of the Board of Supervisors of the County of Rockland and mandatorily enjoining on an interim basis the nomination and election of Board members at large. The proceeding is brought in accordance with Title 28 U.S.C. § 1343(3), which reads:

"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

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"(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States."

The plaintiffs claim that the plan which they seek to set aside is a deprivation under color of State law of their federal constitutional rights.

Since 1965 litigation has been carried on in the federal and State courts to reapportion the Board of Supervisors of Rockland County. The instant motion is the latest in a series of legal twists and turns, the history of which follows:

In the summer of 1965 an action entitled "Lodico v. Board of Supervisors of the County of Rockland" was commenced in the New York State Supreme Court and then removed to this court. A three-judge court was convened, and the matter was subsequently referred to Judge Croake, whose decision (Lodico v. Board of Supervisors of the County of Rockland, 256 F.Supp. 440, 442, May 20, 1966), declared the County of Rockland to be malapportioned and directed that a plan of reapportionment be placed on the ballot in November 1966.

A local law was thereafter adopted by the Board of Supervisors providing for a plan of reapportionment, which Judge Croake approved in a decision of October 11, 1966 (65 Civ. 263). The plan was placed on the ballot in November 1966 and defeated by the voters. Two further plans were placed on the ballot in the spring of 1967, and both were rejected by the voters. This was followed by a referendum as to a new proposed County charter, which was also rejected by the voters.

In the fall of 1968, Samuel J. Abate, designated a party-defendant in this proceeding, commenced a taxpayer's action in the New York State Supreme Court to compel the Board of Supervisors of Rockland County to adopt a plan to be placed on the ballot in November of that year. The County moved to dismiss the complaint. The motion was denied, but Judge Gagliardi temporarily stayed the action. Judge Gagliardi's stay was apparently based on Judge Croake's reported decision of May 1966 referred to above, and without knowledge of Judge Croake's unreported decision of October 11, 1966. Noting this fact, Judge Croake wrote Judge Gagliardi on March 5, 1969,¹ stating in part:

"Throughout the Lodico proceedings, the judges of this court sitting on the case expressed their belief that the apportionment of local elective bodies is a matter better left to the state courts whose judges are more familiar with the localities and problems involved. (See opinion of May 20, 1966, p. 10-11) It would be particularly inappropriate now, with a state action pending, for this court to reassert jurisdiction. To do so would not result in any savings of time or effort since the findings made here are now nearly three years old. Any determination now should be made on the present factual situation."

After receiving Judge Croake's letter of March 5, 1969. Judge Gagliardi on March 12, 1969 lifted the stay in the Abate action.

Thereafter the Board of Supervisors of Rockland County adopted an interim plan of reapportionment weighing the vote of each supervisor in proportion to the population of each town. The frustration and unhappiness of the situation was intensified when the New York State Supreme Court disapproved the plan and directed the Board to submit another.

Finally, on June 24th of this year, the Board adopted a plan of reapportionment,² which was approved by Justice Joseph F. Hawkins of the New York State Supreme Court by decisions of July 21 and July 30, 1969. The Appellate Division of the Supreme Court, Second Department, affirmed Justice Hawkins' decision by order dated August 26, 1969. Application was then made by one of the plaintiffs to the Honorable Charles D. Breitel of the New York State Court of Appeals on September 2, 1969, for a stay of the nomination and election of the candidates to be chosen under the new plan. Judge Breitel denied the application. Appeals from the decision and order of the Appellate Division approving the plan will be heard by the New York State Court of Appeals on the 23rd of this month. Claiming that the plan which has now been approved after this long, arduous history is still defective in meeting constitutional requirements, the plaintiffs move for an injunction setting aside, pending determination by the New York State Court of Appeals, the plan approved by Justice Hawkins and the Appellate Division in the Abate action and mandatorily enjoining, on an interim basis, the nomination and election of Board members at large. For the reasons set forth below the motion is denied.

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On argument of the motion, counsel for the plaintiffs acknowledged that the relief requested is "extraordinary and sweeping," and the acknowledgment is accurate. We deal first with the request to impose an interim at large election plan. While the court cannot agree with the contention of the County attorney that "it is patently evident that the Court does not have jurisdiction to trespass in the...