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January 31, 1967

NEW YORK STATE ASSOCIATION OF TRIAL LAWYERS, Molka Reich, Carole Rosen, Joseph Zadik and James E. Chambliss, on behalf of themselves and others similarly situated, Plaintiffs,
Nelson A. ROCKEFELLER, Louis J. Lefkowitz, John P. Lomenzo, Earl W. Brydges, Joseph Zaretzki, Anthony J. Travia, Moses Weinstein, Perry B. Duryea, Jr., Thomas F. McCoy, and John V. Lindsay, Defendants

Tenney, District Judge.

The opinion of the court was delivered by: TENNEY


TENNEY, District Judge.

 Plaintiffs, a bar association "consisting of approximately 3500 attorneys" (Compl., par. 3)* and four named individuals who are alleged to be plaintiffs in personal injury suits pending in the Supreme Court, Richmond County, and in the Civil Courts of Kings and Queens Counties, respectively (par. 4), bring this civil action seeking declaratory and mandatory injunctive relief to require defendants to establish a "judicial re-apportionment" designed to eliminate court delay in the Supreme and lower Courts of various counties in the State of New York.

 The named defendants are the Governor and Attorney General of the State of New York, who have been sued "as representing the Executive Branch" of the State and in their capacity to make recommendations for new legislation (par. 6); the Secretary of State, who is said to have "authority to accept service on behalf of the legislature" (par. 7); the majority and minority leaders of the Senate and Assembly who are "named as representing the Legislative Branch" (par. 7); the State Administrator of the Judicial Conference of the State of New York (par. 9); and the Mayor of the City of New York (par. 9(a)).

 The jurisdiction of this court is sought to be invoked under the fourteenth amendment, 28 U.S.C. §§ 1331(a), 1343(3), 1357, 42 U.S.C. §§ 1981, 1983 and 1988, and by virtue of the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202 (par. 1). *fn1"

 Although the prayer for relief set forth in the complaint does not specifically call for the enjoining of any state statute, plaintiffs ask that a special three-judge court be convened, as provided in 28 U.S.C. § 2281 et seq., presumably to enjoin the enforcement of New York's constitutional and statutory provisions dealing with the distribution of justices and judges among the judicial districts and counties of the state (Compl., p. 23). *fn2" Plaintiffs further pray that this Court declare that such provisions of the New York Constitution, New York Judiciary Law and other laws, which by their language or application have resulted in calendar delay in the courts of 18 urban and suburban counties, are in violation of the fourteenth amendment.

 Plaintiffs also ask this Court to "order and direct, by mandatory injunction, that the defendants cooperate with one another, and submit a plan to this Honorable Court for the setting up of fair and reasonable Judicial re-apportionment and boundaries" and to provide for the allocation and assignment of sufficient justices and judges and to make available the necessary budgetary requirements, along with "courthouses, personnel and other related facilities" needed to eliminate court delay in any of the counties of the State (pp. 24-25). Pending the submission of such a plan by defendants, plaintiffs ask this Court to authorize the Administrative Board of the Judicial Conference "to re-assign the various Justices and Judges within and throughout the State" and to provide additional personnel and facilities to eliminate delay in urban and suburban counties (p. 25). In the event that the defendants fail to submit the requested plan for "judicial re-apportionment" with necessary budgetary provisions, plaintiffs ask this Court to "itself take such steps as will provide such relief." (pp. 25-26.)

 This case is presently before me for the consideration of two motions: the plaintiffs' application for the convention of a three-judge court, and defendants' motion to dismiss.

 Although it is not ordinarily the function or the prerogative of the district judge to whom is addressed an application for a three-judge court under Title 28 U.S.C. § 2281 to consider the merits of the plaintiffs' alleged grievance, Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962), it is a well-settled principle that when such an application is made the district judge is entitled to dismiss the complaint if the claim of unconstitutionality is "plainly insubstantial" either because it is "obviously without merit" or because it has been rejected by previous decisions. Swift & Co. v. Wickham, 382 U.S. 111, 114-115, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965); Ex parte Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152 (1933) (per curiam); Powell v. Workmen's Compensation Bd., 327 F.2d 131 (2d Cir. 1964); Bell v. Waterfront Comm'n, 279 F.2d 853 (2d Cir. 1960).

 Accordingly, where, as here, there is no diversity of citizenship among the parties, a complaint which fails to present a substantial federal question must be dismissed for lack of jurisdiction over the subject matter. California Water Serv. Co. v. City of Redding, 304 U.S. 252, 254, 58 S. Ct. 865, 82 L. Ed. 1323 (1938).

 It is further "settled that jurisdiction does not arise simply because an averment is made as to the existence of a constitutional question, if it plainly appears that such averment is not real and substantial, but is without color of merit." Newburyport Water Co. v. Newburyport, 193 U.S. 561, 576, 24 S. Ct. 553, 556, 48 L. Ed. 795 (1904).

 In this case, plaintiffs' entire claim rests on the assumption that there is a federally protected right to have state court judges apportioned among judicial districts and counties in such manner as to prevent any greater delay in the adjudication of cases in one area or political subdivision of the state than another. Not only is there a total absence of authority for the existence of any such right, but the assumption upon which it rests is directly contrary to basic principles of federalism and separation of powers.

 It has long been recognized that the equal protection clause of the fourteenth amendment does not prohibit a state from prescribing the jurisdiction of its several courts, either as to their territorial limit or to the subject matter, amount or finality of their respective judgments. Ohio ex rel. Bryant v. Akron Metropolitan Park Dist., 281 U.S. 74, 50 S. Ct. 228, 74 L. Ed. 710 (1930); Mallett v. State of North Carolina, 181 U.S. 589, 597-599, 21 S. Ct. 730, 45 L. Ed. 1015 (1901); Brown v. State of New Jersey, 175 U.S. 172, 20 S. Ct. 77, 44 L. Ed. 119 (1899); State of Missouri v. Lewis, 101 U.S. 22, 30-31, 25 L. Ed. 989 (1879).

 Plaintiffs seek to create an exception to this general policy of the federal judiciary of refusing to interfere with the internal administration by the states of their court systems, by arguing that greater delay in the processing of tort jury and other civil cases in the urban and suburban counties of a state than in its ...

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