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SAMUEL J. ABATE v. PAUL F. MUNDT ET AL. (05/12/69)

SUPREME COURT OF NEW YORK, ROCKLAND COUNTY 1969.NY.41496 <http://www.versuslaw.com>; 300 N.Y.S.2d 447; 59 Misc. 2d 809 May 12, 1969 SAMUEL J. ABATE, AS A TAXPAYER OF THE COUNTY OF ROCKLAND, AND AS A REPRESENTATIVE OF OTHERS SIMILARLY SITUATED, PLAINTIFF,v.PAUL F. MUNDT ET AL., CONSTITUTING THE BOARD OF SUPERVISORS OF THE COUNTY OF ROCKLAND, ET AL., DEFENDANTS J. Martin Cornell, County Attorney, for defendants. Frank P. Barone for plaintiff. Joseph F. Hawkins, J. Author: Hawkins


Joseph F. Hawkins, J.

Author: Hawkins

 The defendants, the Board of Supervisors of the County of Rockland, the Commissioners of the Board of Elections and the Board of Elections of Rockland County move for an order "granting judgment directing the implementation of the local law adopted by the Board of Supervisors of the County of Rockland on March 11, 1969 providing for weighted voting as an interim provision, without a referendum". The plaintiff cross-moves to dismiss the defendants' motion and to direct the "reapportionment of the County of Rockland as requested by the plaintiff", which proposes a 17 single-member district plan.

The late Justice Felix Frankfurter was indeed most prescient when, in his dissent in Baker v. Carr (369 U.S. 186, 268) he anticipated and warned that the court's opinion presaged: "a disheartening preview of the mathematical quagmire (apart from divers judicially inappropriate and elusive determinants) into which this Court today catapults the lower courts of the country without so much as adumbrating the basis for a legal calculus as a means of extrication."

And some two years later, Chief Justice Warren in Reynolds v. Sims (377 U.S. 533, 566) obviously recalling that dissent, noted: "We are cautioned about the dangers of entering into political thickets and mathematical quagmires."

In the instant matter, it appears that on March 11, 1969, the defendant Board of Supervisors adopted a local law entitled: "Local Law providing for Weighting Vote of Each Supervisor on the Board of Supervisors of the County of Rockland." It provides for "an interim plan of weighted voting" whereby the Supervisor of each town of the existing five towns "shall be entitled to cast at the meetings of the Board of Supervisors of the County of Rockland, a number of votes equal to the quotient, rounded to the nearest whole number, obtained by dividing the population of the town from which the Supervisor has been elected or chosen, as determined by the latest official federal census for the entire County, by one thousand."

As derived from said Federal census, the number of voters in the five towns would range from 58,626 for Ramapo -- the largest -- to 11,704 for Stony Point, the smallest, thus yielding a product of some 194 votes and thereby resulting in the Supervisor of each said town, respectively, casting the following votes: Ramapo, 59; Clarkstown, 52; Orangetown, 50; Haverstraw, 21; and Stony Point, 12. The proponents of the interim plan, apart from urging that this complies with the constitutional requirements, plead, alternatively, that despite any misgivings the court may have as to the permanent efficacy of such plan, it should be approved temporarily thereby according the Board of Supervisors additional time within which to advance another and, presumably, more acceptable proposal.

The defendants further urge, inter alia, that the plaintiff is precluded from requesting the court to impose the latter's proposed single-member district plan for the election of Supervisors advanced in the complaint since in his affidavit in support of the cross motion, plaintiff prays that the court promulgate its own plan of reapportionment hence "the Court cannot grant plaintiff's motion for summary judgment." Whether labeled partial summary judgment or temporary injunctive relief, this court may tailor its relief in accordance with the facts and law existing as of the submission and not necessarily those prevailing at the commencement of the proceeding. Equity once it has acquired jurisdiction may, and should, grant relief, mindful of the real rather than nominal issues.

It should be noted that the matter at bar has been placed before the court at the defendants' instance; it is they who seek to have the court make an affirmative direction implementing the local law and to impose, without referendum, the proposed weighted voting arrangement.

The defendants contend that the Board of Supervisors has proceeded in good faith; that some two prior taxpayers' actions constitute res judicata ; that the plaintiff's demand for a "specific plan of reapportionment is now a moot question, in view of the fact that the Board of Supervisors had adopted a specific plan of reapportionment, although the same is of a temporary nature"; that a plan of reapportionment is a matter of legislative prerogative rather than of judicial concern; and that the court can "enjoin" a plan of weighted voting "without a referendum" since the Board of Supervisors is making every effort, in good faith, to comply with the "One-Man, One-Vote" principle.

We do not believe that it would serve any useful purpose to review the several prior proceedings heretofore had in connection with the reapportionment of the Board of Supervisors of Rockland County. We, furthermore, have not been informed of the specific proposals for redistricting or reapportionment -- they are not synonymous (Seaman v. Fedourich, 16 N.Y.2d 94, 97, n. 1) -- which have been defeated by the electorate of Rockland County; nor are they now particularly relevant in view of subsequent judicial determinations. We do not deem it presently appropriate to embark upon a detailed consideration of the various contentions and points raised by the League of Women Voters of Clarkstown/Orangetown and of the Town of Ramapo who were granted leave to intervene as parties plaintiff for we regard the most recent of several opinions by our learned brother, Mr. Justice Dillon, in Town of Greenburgh v. Board of Supervisors of Westchester County (59 Misc. 2d 152), coupled with the very recent opinions by the United States Supreme Court rendered on April 7, 1969, in Kirkpatrick v. Preisler (394 U.S. 526) and Wells v. Rockefeller (394 U.S. 542) and Franklin v. Mandeville (32 A.D.2d 549) is dispositive of the matter at bar.

The basic problem stemming from Iannucci v. Board of Supervisors (20 N.Y.2d 244) and as further reflected in the "refusal" of the Court of Appeals to pass upon the validity of weighted voting in Town of Greenburgh (23 N.Y.2d 733) does, as phrased by Judge Dillon, "leave the whole concept of weighted voting in the category of dubious solutions * * *". As a consequence of Reynolds v. Sims (377 U.S. 533, supra) and Iannucci (supra) there apparently is no question but that the broad principles proscribing malapportioned congressional districts as unconstitutional apply with equal potency to lesser legislative bodies.

Any lingering doubts that weighted-voting proposals are judicially unacceptable, we believe, have been impliedly dispelled by the two most recent decisions, previously cited, of the United States Supreme Court, Kirkpatrick v. Preisler and Wells v. Rockefeller (supra), the latter involving the latest congressional redistricting by our State. Although involving Congressional districts, the following principles were affirmed and reaffirmed; and they are applicable to local legislative bodies (pp. 530-531, 533): "the State [must] make a good-faith effort to achieve precise mathematical equality. See Reynolds v. Sims, 377 U.S. 533, 577 (1964). * * * But to accept population variances, large or small in order to create districts with specific interest orientations is antithetical to the basic premise of the constitutional command to provide equal representation for equal numbers of people".

In the latter opinion, the court further expanded on its holding in Kirkpatrick v. Preisler (p. 544): "We hold that reversal of the District Court's judgment is compelled by our decision today in Kirkpatrick v. Preisler, supra, which elucidates the command of Wesberry that congressional districting meet the standard of equal representation for equal numbers of people as nearly as is practicable." (Italics ours.)

It thus follows from the foregoing that the controlling constitutional mandate is the dual equality of both ...


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