WMCA, Inc. v. Simon

• Decision Date: 28 July 1961
• Parties: W.M.C.A., INC.; R. Peter Straus; Joseph De Maio; Edward Lend; 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, Abe Stark, President of the City Council of the City of New York; A. Holly Patterson, Chairman, Board of Supervisors, Nassau County; Owen M. Quinn, Chairman, Board of Supervisors, Westchester County, William J. Leonard, Chairman, Board of Supervisors, Suffolk County, Denis J. Mahon, James Powers, John R. Crews, Thomas Mallee, Commissioners, Board of Elections, New York City, Defendants.
• Court: U.S. District Court — Southern District of New York

196 F. Supp. 758

W.M.C.A., INC.; R. Peter Straus; Joseph De Maio; Edward Lend; 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, Abe Stark, President of the City Council of the City of New York; A. Holly Patterson, Chairman, Board of Supervisors, Nassau County; Owen M. Quinn, Chairman, Board of Supervisors, Westchester County, William J. Leonard, Chairman, Board of Supervisors, Suffolk County, Denis J. Mahon, James Powers, John R. Crews, Thomas Mallee, Commissioners, Board of Elections, New York City, Defendants.

United States District Court S. D. New York.

July 7, 1961.

Supplemental Opinion July 28, 1961.

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

Louis J. Lefkowitz, Atty. Gen., pro se and for Caroline K. Simon, Secretary of State; and Irving Galt, Asst. Sol. Gen., New York City, George C. Mantzoros, Gretchen W. Oberman, Asst. Attys. Gen., of counsel.

Leo A. Larkin, Corp. Counsel of the City of New York, New York City, for defendant Abe Stark, President of City Council and Denis J. Mahon, and others, Commissioners of the Bd. of Elections of the City of New York, Morris Handel, Saul Moskoff, New York City, of counsel.

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

J. Oakey McKnight, County Atty. of Nassau County, Mineola, N. Y., for defendant A. Holly Patterson, Chairman, Bd. of Supervisors, Nassau County; Harold E. Collins, Deputy County Atty., Nassau County, Mineola, N. Y., of counsel.

Harry G. Herman, County Atty. of Westchester County, White Plains, N. Y., for defendant Owen M. Quinn, Chairman, Bd., of Supervisors, Westchester County.

LEVET, District Judge.

Motions have been made by defendants Caroline K. Simon, Secretary of State of the State of New York; Louis J. Lefkowitz, Attorney General of the State of New York; A. Holly Patterson, Chairman, Board of Supervisors, Nassau County, Owen M. Quinn, Chairman, Board of Supervisors, Westchester County, William J. Leonard, Chairman, Board of Supervisors, Suffolk County, to dismiss the complaint in this action under Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the grounds that (1) the court lacks jurisdiction over the subject matter; and (2) the complaint fails to state a claim upon which relief can be granted.

The New York City defendants, to wit, Abe Stark, President of the City Council of the City of New York; Denis J. Mahon, James Powers, John R. Crews, Thomas Mallee, Commissioners, Board of Elections, New York City, have answered the complaint, admitting the allegations thereof and in effect asking for the relief sought by the plaintiffs. Consequently, they have opposed the aforesaid motion.

The Complaint

Plaintiffs in their various alleged capacities as taxpayers, citizens and voters seek (1) a judgment pursuant to 28 U.S. C.A. §§ 2201 and 2202 declaring New York's constitutional and statutory provisions governing apportionment of State, Senate and Assembly Districts (New York State Constitution, Art. III, §§ 2-5; New York State Law, McK. Consol.Laws, c. 57, §§ 121, 123) unconstitutional under the due process and equal protection clauses of the Fourteenth Amendment of the United States; and (2) an injunction to restrain the New York Attorney General and Secretary of State, as well as the above-mentioned county and municipal officials, from performing their required functions under the challenged laws.

Jurisdiction is asserted and relief requested both under the Civil Rights Act, 42 U.S.C.A. §§ 1983, 1988, and 28 U.S. C.A. § 1343(3), and under the Declaratory Judgments Act, 28 U.S.C.A. §§ 2201-2202. Plaintiffs seek the convening of a three-judge court, pursuant to 28 U.S.C. A. § 2281, insofar as an injunction is sought restraining enforcement or execution of a state statute and constitution.

Except for W.M.C.A. Inc., a New York corporation, characterized in the complaint as a "taxpayer" (par. 3 of complaint), plaintiffs are all individuals described as "citizens," "taxpayers," and "qualified voters" (par. 4 of complaint) from four of the five counties of New York City (none from Richmond County) and the Counties of Nassau and Suffolk. One of the plaintiffs, R. Peter Straus, further alleges that he is president of the corporate plaintiff, W.M.C.A. Inc. (par. 4 a of complaint).

Plaintiffs seek to declare Art. III, §§ 2-5 of the New York State Constitution violative of the due process and equal protection of the law provisions of the Fourteenth Amendment of the Constitution of the United States upon the ground that:

"* * * the apportionment formula contained therein results, and must necessarily result, when applied to the population figures of the State in a grossly unfair weighting of both houses in the State legislature in favor of the lesser populated rural areas of the state to the great disadvantage of the densely populated urban centers of the state." (par. 12 of complaint)

The complaint specifically cites as the cause of this allegedly unconstitutional distribution of state legislative representation the New York Constitutional provisions requiring that:

(a) "* * * the total of fifty Senators established by the Constitution of 1894 shall be increased by those Senators to which any of the larger counties become entitled in addition to their allotment as of 1894, but without effect for decreases in other large counties * * *;

(b) no county may have "four or more Senators unless it has a full ratio for each Senator * * *" and

(c) "* * * every county except Hamilton shall always be entitled in the Assembly to one member coupled with the limitation of the entire membership to 150 members * * *." (par. 13 of complaint.)

Plaintiffs further allege that they have been subjected to "taxation without adequate representation" (par. 18 of complaint) and that the prevailing New York apportionment formula is "contrary to the prevailing philosophy of government in the United States and all Anglo-Saxon jurisdictions." (par. 17 of complaint.)

This court is therefore requested to convene a three-judge court to declare New York State Constitution, Art. III, §§ 2-5, unconstitutional and void; to restrain the Secretary of State from printing, mailing or otherwise distributing any election materials, the Attorney General from enforcing said constitutional and statutory provisions, and the aforementioned municipal and county officials from taking any action under such existing laws (complaint, pp. 15-16). This court is further asked "to retain jurisdiction of this cause until such time as the legislature of the State * * * provides for such apportionment of the State legislature as will insure to the urban voters of New York State the rights guaranteed them by the Constitution of the United States" (complaint, p. 17).

No application by the plaintiffs for a preliminary injunction has been submitted. The plaintiffs here oppose the motion to dismiss the complaint and in turn move that a three-judge court be convened to determine the issues herein involved.

The moving defendants argue in substance that the formula for apportionment of representation in the State legislature involves a matter of local concern and does not present a justiciable issue for the federal courts. In support of their contention reference is made to the long line of decisions¹ by the United States Supreme Court which purportedly evince a consistent attitude of non-intervention in an area characterized by Mr. Justice Frankfurter as a "political thicket." Colegrove v. Green, 1946, 328 U.S. 549, 556, 66 S.Ct. 1198, 90 L.Ed. 1432.

Plaintiffs, on the other hand, in moving for a three-judge court, point out that in almost all the cases cited by defendants involving the question of state apportionment, motions to dismiss the complaint were in fact initially denied and hearings at least were held by three-judge statutory courts convened in accordance with 28 U.S.C.A. §§ 2281 and 2284.²

Plaintiffs argue, moreover, that the recent action of the Supreme Court in a case involving state legislative apportionment, Baker v. Carr (No. 103, October Term, 1960), may presage a reversal of the court's "general philosophy" of reluctance to consider the merits of legislative apportionment suits.³

Baker v. Carr (No. 103, October Term, 1960) concerns an appeal from an order of a three-judge court of the United States District Court for the Middle District of Tennessee dismissing an action wherein it was alleged that the failure of the Tennessee state legislature to comply with provisions of the state Constitution requiring periodic legislative reapportionment violated the equal protection and due process clauses of the Fourteenth Amendment. The district court judge denied the motion to dismiss and held that the court had jurisdiction, leaving the questions presented to be determined by a three-judge court. Baker v. Carr, D.C.M.D.Tenn., Nashville Div. 1959, 175 F.Supp. 649. The three-judge statutory court, in a per curiam decision, declared that it had no right to intervene or to grant the relief sought and dismissed the action. D.C.M.D. Tenn., Nashville Div. 1959, 179 F.Supp. 824.

The Supreme Court noted probable jurisdiction in the case (see 364 U.S. 898, 81 S.Ct. 230, 5 L.Ed.2d 193), agreeing to a hearing on the merits, which was held on April 19 and 20, 1961 (see 29 U.S.L. Week 3313-3316, April 25, 1961). On May 1, 1961, the court ordered that the case be reargued at the head of the calendar on October 9, 1961. See 366 U.S. 907, 81 S.Ct. 1082.

Plaintiffs also advert to another apportionment case now pending for disposition in the United States Supreme Court. In ...