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May 20, 1966

John LODICO, Sr., Plaintiff,
BOARD OF SUPERVISORS OF the COUNTY OF ROCKLAND, Defendant, and Town of Clarkstown, Intervenor

The opinion of the court was delivered by: CROAKE


 CROAKE, District Judge.

 Plaintiff, a resident of the Town of Clarkstown, County of Rockland, State of New York, brought this action in the New York State Supreme Court in and for his county, seeking a declaratory judgment


"that Article 4 of the County Law [McKinney's Consol.Laws, c. 11] of the State of New York * * * [is] illegal, invalid, void and unconstitutional" *fn1" and


"that the defendant immediately reconstitute and formulate a plan wherein and whereby the vote of the BOARD OF SUPERVISORS be proportionate to the number of persons each member represents in relation to the Township and the County population respectively."

 After removal by the defendant, the plaintiff moved for summary judgment and the defendant sought to:


(1) add parties claimed to be indispensable, the State of New York, and the other towns in the county, contending that the county cannot reapportion without enabling legislation of the state and that any order of the court will directly affect the five towns in the county, and (2) refer "the motion to be heard and determined by a district court of three judges on the ground that the constitutional questions are such that the appeal from any order should be directly to the U.S. Supreme Court."

 The intervenor supported the application of the defendant. The motions came on to be heard before the undersigned in the motion part of this court on November 16, 1965, and after some consideration, in a memorandum filed January 17, 1966, the request to convene a panel was granted and the remaining applications were denied without prejudice to renewal before the panel. In an order filed simultaneously with the memorandum, the Hon. J. Edward Lumbard, Chief Judge of the Court of Appeals for this Circuit designated that the Hon. Leonard P. Moore, United States Circuit Judge, and the Hon. Dudley B. Bonsal, United States District Judge for the Southern District of New York, sit with the undersigned in the statutory court. Argument was heard by the panel on February 16, 1966, and in a per curiam opinion filed simultaneously herewith, the matter was resubmitted to me.

 It is the practice of the undersigned to confine opinions to only those matters upon which comment must of necessity be made. However, in the instant circumstances, in the light of the importance of the approach manifested by the statutory court, and in view of the full and hearty agreement of this court with that approach, the temptation to speak shall not be resisted.

 In the Suffolk County Reapportionment case, Bianchi v. Griffing, 238 F. Supp. 997 (E.D.N.Y.1965), app. dismissed, 382 U.S. 15, 86 S. Ct. 52, 15 L. Ed. 2d 11 (1965), the court retained


"jurisdiction of the action with leave to the plaintiffs, in the event an appropriate governing body has not been created for Suffolk County within the permitted standards for representation, to apply for further relief. At this time, it cannot be said that the legislature is unaware of the problem nor, in the light of current court pronouncements, can it now be said that it has failed to act." 238 F. Supp. 1005.

 Though noting that,


"Many cases have been pending in the Supreme Court and in other courts arising out of the decision in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962) but despite the plethora of cases filed and the Supreme Court decisions of June 1964, there has been found no Supreme Court case which overturns the principle announced by that Court that section 2281 does not apply where 'although the constitutionality of a statute is challenged, the defendants are local officers and the suit involves matters of interest only to the particular municipality or district involved.' Ex parte Collins, 277 U.S. 565, 568, 48 S. Ct. 585, 586, 72 L. Ed. 990 (1928).

 the court manifestly held appropriate the convening of a three-judge court.

 The "one-man-one-vote" principle was held applicable to the legislative bodies at a lesser than state level. It was stated that:


"Although no state officer is named as a defendant in this suit and even though we were completely satisfied (which we are not) that no activity of the Board of Supervisors touches upon state interests, it would be unrealistic to ignore the similarity which exists between the selection of state and county legislative bodies. In county-wide administration, just as in state-wide administration, the inhabitants of the populous areas should not be governed by representatives drawn from other and thinly populated areas." 238 F. Supp. at 1004. *fn2"

 The court spoke at length upon the inappropriateness of intervention by it at that juncture. See 238 F. Supp. at 1004-1005. An appeal on behalf of the Board of Supervisors was taken. Plaintiffs appellees moved to dismiss and that motion was granted and "the appeal * * * dismissed for want of jurisdiction." 382 U.S. 15, 86 S. Ct. 52, 15 L. Ed. 2d 11 (per curiam). *fn3" Suffolk County may be compared with Rockland *fn4" as follows: *fn5" Name & Population Least No. % of Total of Smallest Who Elect Population & of Largest Ratio of Maj. of Total Electing a Cities, Towns, or Largest to Board of Popula- Majority of Wards Represented Smallest Supervisors tion Board SUFFOLK Shelter 1,312 131.8 6/10 115,161 666,784 17 Island Islip 172,959 ROCKLAND Stony Point 8,739 Orangetown 42,172 4.9 3/5 58,567 136,803 43

 For all counties in the state, the average ratio of largest represented town, etc., to smallest, is 32.3. The lowest figure is 3.2, for the County of Putnam. The highest ratio is 203.8, in the County of St. Lawrence. The Suffolk figure is the second highest, and the Rockland ratio, the fourth lowest. *fn6" There are only seven other counties with a ratio of less than 10:1.

 The average percentage of the total population electing a majority of a board of supervisors is 27. The highest figure is that in Putnam County, 50, and the lowest, 17, in the counties of Franklin, Herkimer and Suffolk. The Rockland figure of 43 is the third highest in the state. There are no other counties for which the percentage is higher than 40 and only eight others in which the percentage is 35 or above.

 As stated at the hearing before the panel, the defendant does not question the existence of a disparity warranting correction. Rather, argument is directed toward the propriety of intervention by the court at this time, support is asserted for the one-man-one-vote principle, and stress placed upon the affirmative action thus far taken in an effort to remedy the malapportionment.

 As to the matter of affirmative action, it is urged that there is an absence of legal authority by which the county may reapportion itself, that on December 1, 1964, a Charter Study Commission was created for the purpose of considering the formation of a County Charter, that on July 20, 1965, the Board of Supervisors adopted Res. No. 402, providing for the creation of a reapportionment commission, which Commission is presently studying the matter. It is stated the latter Commission had been created in anticipation of enactment of legislation passed by the State Legislature just prior to the close of the session in July which would have given counties such as Rockland the authority to reapportion themselves pursuant to home rule. However, the measure was vetoed by the Governor. It is asserted that the Commission has continued to act so that upon the passage of new legislation, the Board may be better prepared to act. Robert P. Slocum, elected Supervisor of the Town of Stony Point and Chairman of the Board, in a telegram to the Counsel to the Governor dated July 13, 1965, "urgently [requested] the Governor to give serious consideration to approving legislation passed recently by the State Legislature setting guidelines for counties without charters to reapportion and establish county legislatures by 1967." On September 7, 1965, the Board passed Resolution No. 456, requesting the Governor "to call an immediate special session of the New York State Legislature * * * for the purpose of passing legislation which will allow the Counties of the State of New York to implement the one-man, one-vote decision of the United States Supreme Court."

 In an affidavit dated February 4, 1966, Frank Strauss, Executive Assistant to the Chairman of the County Board of Supervisors and Chairman of the Reapportionment Commission of the County, states that:


"The commission has been meeting regularly since its creation in July of 1965, and at the present time the commission has been considering three possible plans for reapportionment of the County of Rockland. At the last regular meeting, held on January 26th, 1966, the commission considered a draft of a proposed plan, a copy of which is attached. * * * This plan was discussed in detail at the meeting and certain revisions were made which are in the process of being incorporated in a revised plan. * * * It is anticipated that the Reapportionment Commission will submit at least three proposed plans to the Board of Supervisors of the County of Rockland for their consideration within the next thirty to sixty days. It is anticipated that the Board of Supervisors will select one of the plans to be placed in final form for the purpose of reapportioning the County of Rockland.


"* * * I am hopeful that legislation will be passed by the New York State Legislature empowering and enabling counties within the State of New York to reapportion. I have been advised that a bill has been introduced in the New York State Legislature for this purpose at the present time. *fn7" I am mindful of the fact that the only method by which a county in the State of New York can reapportion at the present time is by the adoption of a charter, subject to a mandatory referendum pursuant to the provisions of the Municipal Home Rule Law of the State of New York. The Charter Commission of the County of Rockland has been meeting once a week and is in the process of preparing a charter. It is anticipated that the charter will be prepared for final approval by the Board of Supervisors prior to the general elections in the fall of 1966. The Board of Supervisors is considering submitting the proposed charter to the voters at the election in the fall of 1966." pp. 2-3.

 Again, as to the enabling legislation, if that is passed by the legislature, "a reapportionment plan will be approved and be ready for adoption by the County." p. 4. *fn8"

 In view of Bianchi, supra, of the contrast between Suffolk and Rockland Counties and the relative situation in the various counties in this State and of the attempts to remedy the instant disparity, there is indeed immense doubt as to the existence of a basis upon which this court could validly predicate intervention, additional to the time schedule hereinafter provided. *fn9" Moreover, the determination by the panel to expand the principle of Bailey v. Patterson, 369 U.S. 31, 82 S. Ct. 549, 7 L. Ed. 2d 512 (1962), "as a matter of practical judicial administration and as one which does not contravene the purposes of the three-judge court statute in this context" *fn10" is well warranted. The potential volume of these cases is large. The stage at which we are presently is one not calling for action apart from that taken herein. There appears no useful purpose in withdrawing two additional judges from other cases, wherein litigants also have significant controversies which are however presented at a juncture where further action is warranted, merely to set a time schedule. This is especially to be considered in a metropolitan area, such as this one, where, it might be noted, the tasks of the trial bench are not insubstantial.

 As stated by the District Court for the District of Minnesota, in Hedlund v. Hanson, 213 F. Supp. 172 (1962), *fn11" wherein the apportionment of Hennepin County Minnesota County Commissioner Districts, was questioned:


"The federal courts are disinclined to rule on matters peculiarly and primarily of state concern. A healthy respect for the division of powers between the central government and the states is conducive to harmonious and effective government on all levels. We must have a 'scrupulous regard for the rightful independence of the state governments,' and should refrain from acting where proper recourse may be had to a branch or tribunal of the state government." 213 F. Supp. at 173.

 The court held that:


"Since the claimed malapportionment is not disputed, and in view of the intention of the defendants and the intervenor to seek pertinent new laws of the State Legislature which convenes in January of 1962, and of the stated intention of the Hennepin County Board to redistrict the County before the next regular election in 1964, and in the light of the ready availability and jurisdiction of the Minnesota State Courts to afford needful judicial services in the matter, we think it would be unwise and inappropriate for us to accept and exercise jurisdiction in the matter at this time.


"We conclude, therefore, that the case should be continued without date, and the plaintiffs will be permitted, if so advised on the basis of subsequent events, to reassert their claim in this Court." 213 F. Supp. at 173-174.

 Furthermore, the potent radiations in these passages pointing toward the issue of whether a matter involving less than state-wide reapportionment is appropriately presented in federal courts in a factual situation where malapportionment is not disputed, where there is present an intention and action to remedy the malapportionment, and a state court system most readily available to grant appropriate relief, may not properly be ignored.

 As already noted, this is a removed action. Upon oral argument before the panel, counsel for the plaintiff, the party for whose protection the federal courts would presumably be in this area, stated that it would be his preference if the matter had remained in the state court. (See Minutes pp. 5, 16.) *fn12" The decision of the District Court in Bianchi, supra, was rendered on February 1, 1965. It does not appear that prior to that determination, the New York State Courts had held the one-man-one-vote principle applicable to local governmental bodies. *fn13"

 In Goldstein v. Rockefeller, 45 Misc.2d 778, 257 N.Y.S.2d 994 (Sup.Ct. Monroe Co., April 6, 1965), *fn14" the court concluded that the one-man-one-vote principle applied to election of members of the Board of Supervisors of Monroe County and that the apportionment of members of the Board, and Section 150 of the County Law, in so far as its application required that apportionment, violated the equal protection clause of the Fourteenth Amendment and Sections 1 and 11 of Article I of the New York State Constitution. The court permitted the Board to continue to function as then constituted, the November elections to be held under existing law and retained jurisdiction, providing that the parties might apply for further relief after April 1, 1966, "in the light of then existing legislative and decisional law and the interim efforts of the defendants to comply with the constitutional mandate." 257 N.Y.S.2d at 1006.

 In Seaman v. Fedourich, 45 Misc.2d 940, 258 N.Y.S.2d 152 (Sup.Ct. Broome Co. April 13, 1965), the court held that:


"That the 'one person, one vote' principle is applicable to the apportionment of elected members of legislative bodies of governmental units below the level of state legislatures can no longer be doubted." 258 N.Y.S.2d at 155.

 The court has previously noted the Monroe County case and stated that:


"We may not question the decisions of the United States Supreme Court. We are in accord with the decision in Goldstein et al. v. Nelson A. Rockefeller, et al." 258 N.Y.S.2d at 154.

 The court held unconstitutional the then apportionment of the Common Council of the City of Binghamton under Federal and State Constitutions, enjoined any further elections under the existing apportionment plan; permitted the Council to continue to function as then constituted and retained jurisdiction to entertain an application by any party for review of any apportionment plan adopted. The Common Council subsequently formulated a plan, which was determined by the Court on May 3, 1965, not to meet constitutional requirements, 46 Misc. 2d 289, 258 N.Y.S.2d 1008. This decision was unanimously affirmed by the Appellate Division for the Third Department on May 20, 1965, without opinion, 23 A.D.2d 968, 259 N.Y.S.2d 1021, 23 A.D.2d 970; and, also unanimously, by the Court of Appeals, 16 N.Y.2d 94, 262 N.Y.S.2d 444, 209 N.E.2d 778 (July 9, 1965). In an opinion written by Judge Stanley H. Fuld, that court spoke as follows:


"There can be little doubt, and it is not disputed by the defendants, that that principle [one person, one vote] is applicable to elective legislative bodies exercising general governmental powers at the municipal level * * * and such has been the conclusion reached by several courts called upon to consider the question.


"It is axiomatic that local governmental units are creations of, and exercise only those powers delegated to them by, the State (N.Y.Const., art. IX, ยงยง 1, 2; Municipal Home Rule Law, ยงยง 10, 11) and, certainly, if the latter may exercise its legislative powers only in a body constituted on a population basis, any general elective municipal organ to which it delegates certain of its powers must, by a parity of reasoning, be subjected to the same constitutional requirement. Viewed in another way, if, as seems evident, the thrust of the Supreme Court's decisions is that it is inherent within the concept of 'equal protection' that a person has a substantial right to be heard and to participate, through his elected representatives, in the business of government on an equal basis with all other individuals, no reason or justification exists for differentiating, so far as that right is concerned, between the general governmental business carried on in the highest legislative organs of the State and that conducted, by virtue of a delegation of authority, in municipal law-making bodies." 262 N.Y.S.2d at 449, 209 N.E.2d at 781.

 In Shilbury v. Board of Supervisors, 46 Misc.2d 837, 260 N.Y.S.2d 931 (Sup.Ct. Sullivan Co. June 26, 1965), the court made similar determinations as to the Sullivan County Board of Supervisors, except that a plan of weighted voting *fn15" was ordered to be commenced on January 1, 1966 until such time as a constitutionally acceptable plan of apportionment was adopted and that, in any event, a valid plan must be adopted so as to be applicable to the 1967 general election.


In Augostini v. Lasky, 46 Misc.2d 1058, 262 N.Y.S.2d 594 (Sup.Ct. Broome Co., July 20, 1965); Treiber v. Lanigan, 48 Misc.2d 434, 264 N.Y.S.2d 797 (Sup.Ct. Oneida Co. Nov. 30, 1965); Town of Greenburgh v. Board of Supervisors, supra note 7; Dona v. Board of Supervisors, 48 Misc.2d 876, 266 N.Y.S.2d 229 (Sup.Ct. St. Lawrence Co. 1966); and Graham v. Board of Supervisors, 49 Misc. 2d 459, 267 N.Y.S.2d 383 (Sup.Ct. Erie Co., January 20, 1966), similar conclusions were reached as to the Boards of Supervisors of Broome, Oneida, Westchester, St. Lawrence and Erie Counties, respectively.

 Though the court is not insensitive to the considerations which might have prompted removal, the case is properly here. However, the many decisions in the New York State Courts dispel any thought that they are unwilling or unable to cope with and to endeavor to solve the problem of disproportionate representation.

 In the light of recent developments, the parties might have been well advised to have continued to have sought relief in the State courts of their community where the particular needs of the voters of Rockland County would be better known to such courts and under whose supervision a plan could have been created.

 Since the Board has made representations as of February 4, 1966, that three proposed plans would be prepared within 30 to 60 days *fn16" - a period well passed - one plan to be selected by the Board for submission to the voters by the Fall election of 1966 subject to the enactment of legislation at the current term of the Legislature enabling them so to do, this court at this time should refrain from trespassing into a field which fundamentally belongs to the voters of the county. Only when they evince a willful determination not to cure the disproportion in voting strength which now admittedly exists should the courts interfere.

 Plaintiffs quite properly are concerned over possible dilatory tactics although the Board may well be justified in its position that it should await legislative action before proceeding to present a definite plan. Any difference in opinions between the parties as to the present power of the Board to reapportion itself need not be resolved now and may await futher developments.

 Plaintiffs, nevertheless, are entitled to a time schedule. Therefore, the court orders that the Board cause to be prepared a reapportionment plan for the election of a Board of Supervisors and/or the preparation of a charter embodying provisions for the election of a legislative body for the county on a reapportioned basis by such date as will enable such plan and/or charter to be submitted to the voters of Rockland County at the November election of 1966 and in the meantime this court retains jurisdiction of the action so that the parties may make further application for such relief as may be required in the premises.

 So ordered.

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