WMCA, Inc. v. Simon

• Decision Date: 16 August 1962
• Citation: 208 F. Supp. 368
• Parties: W.M.C.A., INC., R. Peter Straus, Joseph De Maio, Edward Lind, S. Thomas Delaney, Edward C. Brown, James J. McCafferty, Plaintiffs, v. Caroline K. SIMON, Secretary of State of the State of New York, Louis J. Lefkowitz, Attorney General of the State of New York, Paul R. Screvane, President of the City Council of the City of New York, Eugene H. Nickerson, Chairman, Board of Supervisors, Nassau County, Leonard Berman, Chairman, Board of Supervisors, Westchester County, William J. Leonard, Chairman, Board of Supervisors, Suffolk County, Denis J. Mahon, James Power, John R. Crews, Thomas Mallee, Commissioners, Board of Elections, New York City, Defendants.
• Court: U.S. District Court — Southern District of New York

208 F. Supp. 368

W.M.C.A., INC., R. Peter Straus, Joseph De Maio, Edward Lind, S. Thomas Delaney, Edward C. Brown, James J. McCafferty, Plaintiffs, v. Caroline K. SIMON, Secretary of State of the State of New York, Louis J. Lefkowitz, Attorney General of the State of New York, Paul R. Screvane, President of the City Council of the City of New York, Eugene H. Nickerson, Chairman, Board of Supervisors, Nassau County, Leonard Berman, Chairman, Board of Supervisors, Westchester County, William J. Leonard, Chairman, Board of Supervisors, Suffolk County, Denis J. Mahon, James Power, John R. Crews, Thomas Mallee, Commissioners, Board of Elections, New York City, Defendants.

United States District Court S. D. New York.

August 16, 1962.

Robinson, Silverman, Pearce & Aronsohn and Max Gross, New York City, for plaintiffs; Leonard B. Sand, New York City, of counsel.

Louis J. Lefkowitz, Atty. Gen. of New York, Albany, N. Y., pro se and for Caroline K. Simon, Secretary of State of New York; Irving Galt, Asst. Sol. Gen., George C. Mantzoros, Sheldon Raab, Asst. Attys. Gen., of counsel.

Leo A. Larkin, Corp. Counsel, New York City, for defendant Paul R. Screvane, President of the City Council of City of New York, and defendants Denis J. Mahon and others, Commissioners of Board of Elections of City of New York; Benjamin Offner, George Dwight, New York City, of counsel.

George W. Percy, Jr., County Atty. for County of Suffolk, Riverhead, N. Y., for defendant William J. Leonard, Chairman, Board of Supervisors, Suffolk County; Stanley S. Corwin, Asst. County Atty., of counsel.

Bertram Harnett, County Atty., for County of Nassau, Mineola, N. Y., for defendant Eugene H. Nickerson, Chairman, Board of Supervisors, Nassau County; Douglas P. Null, Senior Deputy County Atty., of counsel.

Francis J. Morgan, County Atty. of Westchester County, White Plains, N. Y., for defendant Leonard Berman, Chairman, Board of Supervisors, Westchester County; Irving Libenson, Asst. County Atty., of counsel.

Before WATERMAN, Circuit Judge, and RYAN and LEVET, District Judges.

LEVET, District Judge.

This is an action for a judgment declaring that the constitutional and statutory provisions of the State of New York governing the apportionment of Senate and Assembly districts are unconstitutional.

The previous history of the proceedings in this Court appears in W. M. C. A., Inc. v. Simon, D.C.S.D.N.Y.1961, 196 F.Supp. 758, and the action here is the same as the one before this three-judge court in 202 F.Supp. 741 (1962). The original decision was a dismissal of the complaint.

Following the decision in Baker v. Carr, 1962, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, the Supreme Court, on June 11, 1962, vacated the judgment entered upon the opinion by us contained in 202 F.Supp. 741 and remanded the case "for further consideration in the light of Baker v. Carr." 370 U.S. 190 at 191, 82 S.Ct. 1234, at 1236, 8 L.Ed.2d 430.

Accordingly, after due notice to the parties, a hearing was held by this Court on August 1, 1962 at which time the proofs offered by the parties (in so far as we believed to have been relevant) were submitted and extensive oral argument on the merits of the claim was heard and briefs of the parties submitted. Now after deliberation and reconsideration in the light of Baker v. Carr, supra, we find and conclude as follows:

FACTS

1. The New York State constitutional and statutory provisions are set forth as exhibits in the complaint. (Constitution Art. 3, Sections 2, 3, 4, 5. Statutes — State Law, McKinney's Consol.Laws, c. 57, §§ 120-123.)

2. There is no failure by the legislature to comply with the State Constitution and only the so-called malapportionment of Senatorial and Assembly districts is here involved. (Minutes of Nov. 15, 1961, pp. 32-33.)

3. No purposeful discrimination against any race, religion, creed or sex or national origin is claimed by plaintiffs. (Minutes, August 1, 1962, pp. 31, 32.) The whole objection of plaintiffs is that there is not fair representation of urban areas. (Id. at p. 32.)

The plaintiffs' claim is that the Constitution of the State of New York is unconstitutional under the Federal Constitution. (Id. at pp. 127, 128.)

As to the City of New York, its counsel conceded that there was no allegation of discrimination "other than a discrimination arising from financial matters either in the collection of taxes or the distribution of taxes or funds collected by the State and distributed throughout the whole State to the various communities and cities." (Id. at p. 42.)

4. We take judicial notice of the following:

The revised Constitution of 1894 containing the present apportionment provisions was submitted to the voters on November 6, 1894 and was approved by a vote of 410,697 to 327,402; the legislative apportionment was approved by a vote of 404,335 to 350,625. See Legislative Manual, New York, 1961-1962, page 289. On November 7, 1916, on a vote to revise the Constitution and amend the same, the vote was 506,563 for and 658,269 against. Id. at p. 292. On November 5, 1957, the vote for a convention to revise the Constitution and amend the same was 1,242,568 for and 1,368,063 against. Id. at p. 309.

5. We also, on a similar basis, note:

New York City with a population of 7,781,984 or 46.0% of the state's population of 16,782,304, has 65 assemblymen or 43.3% of the total assembly, and 25 senators or 43.1% of the total number of senators, while the counties other than those in New York City, with 54.0% of the population, have 56.7% of the total assembly and 56.9% of the senate seats.

6. The courts of the State of New York have approved the present methods of apportionment. Matter of Sherrill v. O'Brien, 1907, 188 N.Y. 185, 81 N.E. 124; Matter of Fay, 1943, 291 N.Y. 198, 52 N.E.2d 97; See also Matter of Dowling, 1915, 219 N.Y. 44, 113 N.E. 545.

7. A summary of the provisions of the State Constitution and statutes relative to Senatorial apportionment is substantially as follows:

"The Senate districts are created primarily on the basis of citizen population. A `ratio' is determined by dividing the citizen population of the State by 50 (the number of Senators); Senate districts are then formed by combining or dividing counties so that each district contains approximately this number (the `ratio') of citizens. The Constitution provides that each district shall contain as nearly as may be an equal number of inhabitants, excluding aliens, and be in as compact a form as practicable. There are four further provisos: When any county is entitled to more than three Senators, the Senate is enlarged from its minimum size (50) by the number of these additional Senators; no county can have four or more Senators unless it has a full population ratio for each; no county shall have more than one third of all the Senators; and no two counties that are adjoining or separated by one public waterway shall have more than half of all the Senators. (The last two of these provisos are inoperative, since no counties are entitled to that number of Senators.)" (Opening Memorandum For Defendants Simon and Lefkowitz Before The Statutory Court On Remand From the Supreme Court of the United States, pp. 4-5.)

8. A summary of the provisions of the State Constitution and statutes relative to Assembly apportionment is substantially as follows:

"The total number of Assemblymen is fixed at 150, with every county except Hamilton (which shares one Assemblyman with Fulton County) entitled to one Assemblyman. Sixty-one seats are thus accounted for. The remaining 89 seats, however, are apportioned in this manner: The citizen population of the State is divided by the total number of Assemblymen, and the quotient thus achieved becomes the `ratio.' Every county whose citizen population equals 1½ times the `ratio' is entitled to a second Assemblyman. The rest of the seats are then apportioned among those counties with citizen populations greater than twice the `ratio.' Seats apportioned on remainders are apportioned in order of highest remainders, with the proviso that no county shall have more Assemblymen than a county with a larger citizen population." (Opening Memorandum For Defendants Simon and Lefkowitz Before the Statutory Court On Remand From the Supreme Court of the United States, p. 4.)

While more than one Senate or Assembly district can be contained within the whole of a single county, and while a given Senate district may consist of more than one county, no county border line can be broken in the formation of either type of district.

9. Certain statistical data were submitted by the parties in a Stipulation filed on August 1, 1962 and, by order of the court made a part of the record; Plaintiffs' Exhibits 1 through 7 also contain statistical tables. A copy of Tables IV (Appendix A) and VIII (Appendix B) from the said stipulation are appended hereto. These projected statistics of an apportionment based on the 1960 census appear to state the basis of plaintiffs' claims.

10. In the appendices hereto we attach (a) a map of the present Assembly Apportionment, the original of which is contained between pp. 748-749 of the Legislative Manual of the State of New York for the year 1960 (Appendix C), (b) a map of the present Senate Apportionment, the original of which is contained in the same publication between pp. 712-713 (Appendix D), (c) a Table of the Population of State of New York, County Recapitulations, the original of which is contained on pp. 1,030 and 1,031 of the Legislative Manual of the State of New York for the year 1961-1962 (Appendix E). We take judicial notice of the facts therein contained.

ISSUES

The questions for determination by this Court are as follows:

First, do the undisputed facts constitute "invidious discrimination" against the plaintiffs and those similarly situated under the decision of the United States Supreme Court in Baker v. Carr, supra; second, assuming an affirmative answer to the first...