WMCA, Inc. v. Simon

• Decision Date: 11 January 1962
• Citation: 202 F. Supp. 741
• 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, 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

202 F. Supp. 741

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, 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.

January 11, 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., pro se., for Caroline K. Simon, Secretary of State of New York. Irving Galt, Asst. Sol. Gen., New York City, George C. Mantzoros, Gretchen W. Oberman, Asst. Attys. Gen., of counsel.

Leo A. Larkin, Corp. Counsel, New York City, for Abe Stark, President of the City Council of City of New York, and Denis J. Mahon, and others, Commissioners of the Board of Elections of the City of New York. Benjamin Offner, New York City, of counsel.

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

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

Francis J. Morgan, County Atty. of Westchester County, White Plains, N. Y., for Owen M. Quinn, Chairman, Board of Supervisors, Westchester County. Irving Libenson, Asst. County Atty., Mt. Vernon, N. Y., of counsel.

Ferdinand I. Haber, Mineola, N. Y., for petitioner.

Eugene H. Nickerson, New York City, amici curiae.

Before WATERMAN, C. J., and RYAN and LEVET, D. JJ.

LEVET, District Judge.

This matter came before this court pursuant to Title 28 U.S.C.A. § 2284 as a result of the determination by the district court by opinion dated July 7, 1961 and order made pursuant thereto. See W. M. C. A. Inc. v. Simon, D.C.S.D.N.Y., 1961, 196 F.Supp. 758.

Before this statutory three-judge court, motions have been renewed 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 declaratory judgment pursuant to 28 U.S.C.A. §§ 2201 and 2202 that 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, McKinney's Consol.Laws, c. 57, §§ 121, 123) are 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 was asserted under the Civil Rights Act, 42 U.S.C.A. §§ 1983, 1988, and 28 U.S.C.A. § 1343(3). Plaintiffs sought the convening of a three-judge court, pursuant to 28 U.S.C.A. § 2281, insofar as an injunction is requested 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 ask the court to declare Art. III, §§ 2-5 of the New York State Constitution violative of the due process and equal protection of the laws provision 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." (Complaint, par. 17)

The district court was 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, to restrain 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). Before the district judge, the defendants moved to dismiss the complaint for lack of jurisdiction over the subject matter and failure to state a claim upon which relief could be granted. The district judge in convening this three-judge court denied the motion to dismiss without prejudice to the right of the defendants to renew such motion before the three-judge statutory court. W. M. C. A. Inc. v. Simon, D.C.S.D.N.Y., 1961, 196 F.Supp. 758. 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, par. 17)

JURISDICTION

"Jurisdiction * * * is the power to consider and decide one way or the other, as the law may require, and is not to be declined merely because it is not foreseen with certainty that the outcome will help plaintiff." Geneva Furniture Mfg. Co. v. S. Karpen, 1915, 238 U.S. 254, 35 S.Ct. 788, 59 L.Ed. 1295. "Jurisdiction" connotes the power to decide a case on its merits. Kibler v. Transcontinental & Western Air, D.C. E.D.N.Y., 1945, 63 F.Supp. 724.

Even before the case of Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, the United States Supreme Court never held that the federal courts were without jurisdiction over matters concerning legislative apportionment involving either Congressional or state legislative apportionments. Rather, it appears that the court has seen fit in specific instances to decline to exercise its equity power in that area.

Defendants in opposing jurisdiction herein rely on the determination in Colegrove v. Green, 1946, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, rehearing denied 1946, 329 U.S. 825, 828, 67 S.Ct. 118, 91 L.Ed. 701. It is argued that the Colegrove case decided that there was no jurisdiction in the federal courts in suits involving apportionment. An examination of the opinion will reveal that this interpretation is incorrect. In Colegrove, the plaintiff complained that the state legislature had failed to reapportion the Illinois Congressional Districts for some forty years and that inequality of voting power resulted. The statutory court concluded that it was bound by the decision in Wood v. Broom, 1932, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131¹ and, accordingly, dismissed the suit.

In the United States Supreme Court in Colegrove v. Green, supra, only seven justices participated. Chief Justice Stone heard the argument, but died before the decision. Mr. Justice Jackson took no part in the consideration or decision of this case. Mr. Justice Frankfurter wrote the opinion of the court,...