Weiss v. Duberstein, 792
| Decision Date | 20 July 1971 |
| Docket Number | No. 792,Docket 71-1018.,792 |
| Citation | 445 F.2d 1297 |
| Parties | Peter WEISS, on behalf of himself and all other persons similarly situated, and Lillian Robinson, on behalf of herself and all other persons similarly situated, Plaintiffs-Appellants, v. J. J. DUBERSTEIN et al., Defendants-Appellees, Louis J. Lefkowitz, Attorney General of the State of New York, Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
John Dewitt Gregory, New York City, Community Action for Legal Services, Inc. (Lawrence J. Fox, New York City, of counsel), for plaintiffs-appellants.
Samuel A. Hirshowitz, First Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York and Robert S. Hammer, Asst. Atty. Gen., of counsel), for intervenor-appellee.
Before FRIENDLY, Chief Judge, WATERMAN, Circuit Judge, and ZAVATT, District Judge.*
The plaintiff Peter Weiss sues as a member of the Democratic County Committee of Bronx County and also in behalf of the class consisting of members of the Democratic and Republican County Committees of Bronx, Queens and Richmond Counties. The plaintiff Lillian Robinson sues as a resident of Bronx County and a duly registered member of the Democratic Party and also in behalf of the class consisting of all registered Democrats and Republicans of Bronx, Queens and Richmond Counties. Both plaintiffs appeal from the order of District Judge Frankel of the Southern District of New York, dated and filed October 5, 1970, denying their motion for summary judgment in a class action seeking a judgment declaring unconstitutional § 31 of the New York Election Law.1 The complaint is grounded in 42 U.S.C. § 1983 and attacks the state statute as violative of the Equal Protection Clause of the Fourteenth Amendment to the Constitution. It is their contention (1) that § 31 deprives the Republican and Democratic County Committees of Bronx, Queens and Richmond Counties of the right to certify party members for appointment as commissioners of the New York City Board of Elections by the City Council of the City of New York and (2) that it limits such appointments by the City Council to resident qualified voters of New York and Kings Counties, if not by the very language of the statute, in fact, by virtue of the actual practice of the City Council.
Judge Frankel denied the plaintiffs' motion for summary judgment (and, on November 19, 1970, plaintiffs' motion for reargument), retained jurisdiction but abstained from exercising the same in order to afford the New York Courts an opportunity to explain and definitively interpret the challenged section. Judge Frankel felt that the statute was ambiguous and that a federal court should give the state courts a chance to interpret it in a way that would save it from unconstitutionality. Since the effect of the denial of the plaintiffs' motion was to deny the plaintiffs the temporary injunction which they sought, the portion of the order directing abstention is appealable under 28 U.S.C. § 1292(a) (1).
Sections 30 and 31 of the Election Law derive from the Election Law of 1896, c. 909, § 11, sub. 2(b) pet., as added by L. 1901, c. 95, § 5. Section 30 has always provided that the Board of Elections in the City of New York shall consist of four commissioners to be appointed by the City Council; that "not more than two commissioners * * * shall belong to the same political party"; that the said Board "shall be deemed to be also the Board of Elections for each county in such city." New York Election Law (McKinney 1922, 1949, 1964). Section 31 has always provided that recommendations for the appointment of commissioners are to be made by the chairmen of the New York and Kings County Committees of the two predominant political parties, New York Election Law (McKinney 1922, 1949, 1964).
The New York Election Law was recodified and reenacted as L.1949, c. 100, § 1-342, eff. March 9, 1949. Section 31 thereof consisted of two unnumbered paragraphs. The first paragraph continued (as theretofore) to vest in each of the chairmen of the New York and Kings County Committees of the two dominant political parties the sole right to certify to the New York City Council the name of a person for appointment as a Commissioner of Elections. The second paragraph related to the filling of a vacancy in the office of Commissioner. It provided that, if the vacancy occurred in the Board of Elections of New York City and the Commissioner whose office became vacant was a resident of the Borough of Manhattan or of the Borough of Bronx, the chairman of the New York County Committee of his party shall make and file a recommending certificate with the City Council. If the Commissioner whose office became vacant was a resident of any other borough of the City, the recommending certificate was to be made and filed with the City Council by the chairman of the Kings County Committee of his party. This method of filling vacancies was a continuation of prior provisions of § 31. See New York Election Law (McKinney 1922).
During the same legislative session at which the Election Law was recodified, § 31 was amended by L.1949, c. 574, § 3, effective April 13, 1949. General Laws of the State of New York, 1949 (West Publishing Co. 1949). Reference to this amendment is made infra.
Not until 1970 was the first paragraph of § 30 amended to specify the residence and age qualifications of such commissioners, i. e., that they "shall be residents of the city of New York and at the time of appointment be at least twenty-one and not more than seventy years of age." L.1970, c. 678, eff. September 1, 1970.
Section 31 has provided, ever since its enactment, that only the chairmen of the New York and Kings County Committees of the two political parties which, at the last general election, cast the highest and next highest number of votes for Governor, may each certify to the New York City Council the name of a person recommended for appointment as a commissioner of elections. In fact, the chairmen of the Republican and Democratic County Committees of only two of the five counties within the City of New York may recommend persons for such appointment.
While it would be possible to read § 31 as not barring the appointment by the City Council of a resident of Bronx, Queens or Richmond Counties, as a theoretical possibility, there is no ambiguity as to who may certify residents for such appointment. The limitation of the certifying authority to the chairmen of the two dominant political party committees of only two of the five boroughs raises a constitutional issue, namely, whether there is a rational basis for so limiting the certificating authority.
When this section of the Election Law was enacted, New York and Kings Counties were the most populous counties of New York City. At the request of this court, the intervenor-appellee has furnished the following comparative population statistics of all five boroughs of the City of New York for the years 1900, 1960 and 1970.2
County 1900 % 1960 % 1970 %
Bronx 200,507 6 1,424,815 18 1,472,216 19
Kings 1,166,582 34 2,627,319 34 2,601,852 33
New York 1,850,093 54 1,698,281 22 1,524,541 19
Queens 152,999 4 1,809,578 23 1,973,708 25
Richmond 67,021 2 221,991 3 295,443 4
As of 1900, Kings and New York Counties, having 88% of the total city population, enjoyed through their Republican and Democratic County Committees the exclusive privilege of certifying candidates for appointment to the Board of Elections for the entire city, including the three other counties having an aggregate population of 12% of the total city's population. In 1960, they enjoyed the same exclusive privilege, although their aggregate populations constituted only 56% of the total city population. Today, they enjoy that same exclusive privilege, despite the fact that their aggregate populations represent only 52% (a decrease of 36% since 1900) of the total city population. The persistence of this certifying aspect of § 31 of the Election Law is somewhat redolent of the rotten boroughs in English history.
As to the residency requirements of commissioners certified by the Kings and New York County Committees of the Republican and Democratic parties, §§ 30 and 31 (as amended in 1970) do not, in haec verba, limit such nominees and appointees to qualified voters residing in New York and Kings Counties. They provide that those so nominated and appointed shall be residents and qualified voters of the City of New York. A politically naive reader would conclude that the New York Legislature was providing, in fact, for the nomination and the appointment of qualified voters from among all such voters throughout the City of New York; that it never occurred to the members of the Legislature that the County Committees of the two dominant political parties would be so provincial as to certify to the City Council only Republicans and Democrats resident and politically active in New York and Kings Counties, albeit the annual salary of each such commissioner, for a part-time job, is substantial and the Board of Elections is vested with authority to appoint all of its supporting personnel. It was not developed on argument or in briefs how many such personnel are employed by the Board; the total payroll; how many of such persons, if any, are residents of counties other than New York and Kings Counties. It is to be noted that § 36 of the Election Law empowers the Board of Elections to "appoint and at pleasure remove deputies, clerks, voting machine custodians and other employees * * * in the city of New York, * * * The board of elections also may fix the number and salaries of its employees * * *"
In their brief and on the argument of this appeal, plaintiff...
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