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September 30, 1968

Frances INCE, Dorothy Miles and William J. May, jointly and severally on their own behalf and on behalf of all other citizens of the County of Queens, State of New York and particularly citizens residing in East Elmhurst, who are similarly situated, Plaintiffs,
Nelson A. ROCKEFELLER, as Governor of the State of New York, Louis J. Lefkowitz, as Attorney General of the State of New York, John P. Lomenzo, as Secretary of State of the State of New York, Malcolm Wilson, as Lt. Governor of the State of New York and Presiding Officer of the Senate of the State of New York and Anthony J. Travia, as Speaker and Presiding Officer of the Assembly of the State of New York, Defendants

Pollack, District Judge.

The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

Defendants, New York State executive and legislative officials, move to dismiss the complaint herein for lack of subject matter jurisdiction and legal insufficiency of the claim. Rules 12(b)(1) and (6), F.R.Civ.P.

 This is a class action brought by three qualified voters who reside in East Elmhurst, one of 44 recognized communities in Queens County. (Tauber and Kaplan, The New York City Handbook, 1968). Plaintiffs claim that as to themselves and others similarly situated in East Elmhurst, the present apportionment of State Assembly Districts - made in 1966 under mandate of the New York Court of Appeals in Matter of Orans, 17 N.Y.2d 107, 269 N.Y.S.2d 97, 216 N.E.2d 311 (1966) - violates the United States Constitution, Amendments XIV and XV. Plaintiffs, in attacking the constitutionality of the 1966 apportionment plan on these allegations, seek to reactivate a dispute which ricocheted within the state and federal judicial systems, between state and federal courts, and between the courts and the New York legislature from 1961 until 1966. (See Appendix to this opinion for a brief review of the complex state and federal litigation culminating in the present apportionment.)


 Under the present apportionment plan, the predominantly Negro community of East Elmhurst is divided between the 23rd and 31st Assembly Districts. This division of the community is characterized by the plaintiffs as an "irrational, racially motivated, invidiously discriminatory scheme whereby the plaintiffs and other citizens of East Elmhurst, particularly Negro citizens there, are deprived of the right to cast effective votes for their representatives in the New York State Assembly * * *". Plaintiffs in effect seek a District from which they presumably would be able to elect a Negro Assemblyman by the use of the full leverage of their homogeneity.

 The factual allegations of the complaint are deemed admitted for the purposes of the issues raised by the motions. Accordingly, it appears that:

 In the 1960 census, East Elmhurst contained approximately 20,000 people of whom approximately 10,000 were Negroes. Population movements since the census have resulted in a clear and growing majority of Negroes in East Elmhurst. According to the 1960 census, the 23rd and 31st Assembly Districts are virtually equal in population, each containing just over 108,000 persons. Matter of Orans, 17A N.Y.2d Map 8.

 The present apportionment plan divides East Elmhurst between two Assembly Districts; five largely Negro election districts are now included in the heavily white 23rd Assembly District, and the remainder of East Elmhurst is included in the 31st Assembly District.

 The portion of East Elmhurst placed in the 23rd Assembly District is not contiguous with the rest of that District, being widely separated therefrom by Flushing Bay, Flushing River, Flushing Meadow and a major highway complex-interchange but not by any residential area. This East Elmhurst portion of the 23rd Assembly District is geographically contiguous with Elmhurst and Corona - which are in the 31st Assembly District. (See MAP appended to the end of this opinion.)

 It is alleged that the voters residing in East Elmhurst tend to have a common point of view on many of the important issues facing a State Assemblyman, including civil rights, education, law enforcement, minimum wages, housing, social welfare, taxation, and others; and further, that, being similarly situated, they are similarly affected by the actions of the State Assembly upon these issues.

 As a result of the division of their community between the two Assembly Districts (whether motivated by racial or other considerations) the people of East Elmhurst are allegedly prevented from being a significant political force in either one; they are unable to elect either party leaders in the primaries or Assemblymen in the general elections who reflect and are concerned with their problems and points of view. Such circumstances allegedly constitute an effective deprivation of their right to vote in violation of the United States Constitution, Amendments XIV and XV.

 The gravamen of the claim is impairment of voting rights - rights fundamental "because preservative of all rights". Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S. Ct. 1064, 30 L. Ed. 220 (1886).


 Plaintiffs invoke the jurisdiction of this Court under the civil rights statutes, 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. § 1343, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. Plaintiffs also seek a hearing by a special three-judge district court under 28 U.S.C. §§ 2281, 2282 and 2284.

 The complaint prays for declaratory and injunctive relief. It requests that the present apportionment of State Assembly Districts, as it affects the community of East Elmhurst, be declared to be invalid under the United States Constitution, Amendments XIV and XV; and that the Court enjoin the defendants, after the general election of 1968, from conducting any elections for State Assemblymen in Queens County under the present (1966) apportionment plan. Plaintiffs also request the Court to direct the defendants, representing the executive and the legislative branches of the government of the State of New York, to reapportion the Assembly Districts of Queens County in accordance with the United States Constitution and the rights of plaintiffs and of all others similarly situated.

 On its face, the complaint asserts violations of the United States Constitution. These allegations do not appear to be either wholly immaterial or made solely for the purpose of obtaining jurisdiction. This Court, therefore, has jurisdiction of the subject matter of the complaint to determine whether a claim is stated upon which relief can be granted. Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 90 L. Ed. 939 (1946). Jurisdiction is not lacking to decide the legal sufficiency of the claim merely because of the possibility that the allegations will not withstand a legal test thereof or require a determination of any issues of fact arising in the controversy. (Ibid.)

 A district judge, sitting alone (but, of course, subject to review), is authorized to determine in the first instance whether or not a case is one for the convening of a special three-judge panel of the District Court. J. B. Schermerhorn, Inc. v. Holloman, 74 F.2d 265, 266 (10th Cir. 1934), cert. den. 294 U.S. 721, 55 S. Ct. 548, 79 L. Ed. 1253 (1935). For the reasons stated below, it is held that this case does not warrant a three-judge panel.

 It is settled that under § 2281 a three-judge panel may be convened only where: the complaint challenges a state statute; the statute is of general application throughout the state; a state officer is a party defendant; injunctive relief is sought; and a substantial federal constitutional issue is raised. Absent any one of these prerequisites there is no statutory basis for convening a three-judge panel. Hinton v. Threet, 280 F. Supp. 831, 835 (M.D.Tenn.1968); Liveright v. Joint Committee of General Assembly, 279 F. Supp. 205 (M.D.Tenn.1968).

 The three-judge statute is "not * * * a measure of broad social policy to be construed with great liberality, but * * * an enactment technical in the strict sense of the term and to be applied as such". Phillips v. United States, 312 U.S. 246, 251, 61 S. Ct. 480, 483, 85 L. Ed. 800 (1941).

 In light of this rule of construction, the presence here of the first of the five statutory prerequisites is questionable, viz., a state statute, or its equivalent, which has been challenged. Here we are dealing with a judicial decree, not a legislative enactment, by which an apportionment plan was promulgated. Query whether such a decree may be equated with a state "statute" within the meaning of § 2281. It is true that a statute in its strictest sense is not prerequisite. In A.F. of L. v. Watson, 327 U.S. 582, 592-593, 66 S. Ct. 761, 766, 90 L. Ed. 873 (1946), the Supreme Court said that:

"In our view the word 'statute' in § 266 [the predecessor of § 2281] is a compendious summary of various enactments, by whatever method they may be adopted, to which a State gives her sanction * * *"

 and thus administrative orders of state agencies and state constitutional provisions have been held to be "statutes". However, research has not disclosed any case holding that a judicial decree is similarly within the reach of § 2281.

 Nor is it clear that the relief sought and the constitutional challenge presented here are of general and statewide application, so as to require the convening of a three-judge court. The Supreme Court has frequently reviewed the legislative history of § 2281 and has repeatedly concluded that its purpose was "'to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme * * * by issuance of a broad injunctive order' (Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154, 83 S. Ct. 554, 560, 9 L. Ed. 2d 644 (1963) * * *". Moody v. Flowers, 387 U.S. 97, 101, 87 S. Ct. 1544, 1547, 18 L. Ed. 2d 643 (1967), and see cases cited therein. And in Phillips v. United States, supra, 312 U.S. at 251, 61 S. Ct. at 483:

"The crux of the business is procedural protection against an improvident state-wide doom by a federal court of a state's legislative policy. This was the aim of Congress and this is the reconciling principle of the cases."

 The injunctive relief here sought is only as to one small corner of but one of the State's 62 counties. This suit concerns not a cohesive statewide system of legislation, Cf. Flast v. Cohen, 392 U.S. 83, 88-89, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968), but rather a situation unique to a portion of Queens County.

 Furthermore, the Supreme Court has said that a three-judge court is not required when the claim of unconstitutionality "is wholly insubstantial, legally speaking non-existent." Bailey v. Patterson, 369 U.S. 31, 33, 82 S. Ct. 549, 551, 7 L. Ed. 2d 512 (1962). As we shall see, the claim here is insubstantial and is foreclosed as a litigable issue.

 Accordingly, it is held that the jurisdiction of this Court, sitting alone, is not limited by 28 U.S.C. § 2281. Griffin v. County School Board, 377 U.S. 218, 228, ...

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