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IN RE O'SULLIVAN

September 15, 1969

Application of Cornelius T. O'SULLIVAN, Ichabod F. Scott and Michael J. Clarke, as individuals and as Representatives of Others Similarly Situated, Plaintiffs
v.
Paul F. MUNDT, Philip J. Rotella, John B. Lovett, John F. McAlevey, Harold K. Grune, constituting the Board of Supervisors of the County of Rockland, the County of Rockland, and Charles Furst and Arthur Ackerman, as Commissioners of the Board of Elections of the County of Rockland, and the Board of Elections of Rockland County, Defendants, and Samuel J. Abate, as a Taxpayer of the County of Rockland, and as a Representative of Others Similarly Situated, June Molof, Mindy Baker, Gloria English, Joyce Braziller, Linda Berns and Judy Bartosik, as Individuals and as Representatives of Others Similarly Situated, Party-Defendants



The opinion of the court was delivered by: LASKER

MEMORANDUM

 LASKER, District Judge.

 Plaintiffs move for an injunction setting aside, pending determination by the New York State Court of Appeals, a reapportionment plan for the election of the Board of Supervisors of the County of Rockland and mandatorily enjoining on an interim basis the nomination and election of Board members at large. The proceeding is brought in accordance with Title 28 U.S.C. § 1343(3), which reads:

 
"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
 
* * *
 
"(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States."

 The plaintiffs claim that the plan which they seek to set aside is a deprivation under color of State law of their federal constitutional rights.

 Since 1965 litigation has been carried on in the federal and State courts to reapportion the Board of Supervisors of Rockland County. The instant motion is the latest in a series of legal twists and turns, the history of which follows:

 In the summer of 1965 an action entitled "Lodico v. Board of Supervisors of the County of Rockland" was commenced in the New York State Supreme Court and then removed to this court. A three-judge court was convened, and the matter was subsequently referred to Judge Croake, whose decision (Lodico v. Board of Supervisors of the County of Rockland, 256 F. Supp. 440, 442, May 20, 1966), declared the County of Rockland to be malapportioned and directed that a plan of reapportionment be placed on the ballot in November 1966.

 A local law was thereafter adopted by the Board of Supervisors providing for a plan of reapportionment, which Judge Croake approved in a decision of October 11, 1966 (65 Civ. 263). The plan was placed on the ballot in November 1966 and defeated by the voters. Two further plans were placed on the ballot in the spring of 1967, and both were rejected by the voters. This was followed by a referendum as to a new proposed County charter, which was also rejected by the voters.

 In the fall of 1968, Samuel J. Abate, designated a party-defendant in this proceeding, commenced a taxpayer's action in the New York State Supreme Court to compel the Board of Supervisors of Rockland County to adopt a plan to be placed on the ballot in November of that year. The County moved to dismiss the complaint. The motion was denied, but Judge Gagliardi temporarily stayed the action. Judge Gagliardi's stay was apparently based on Judge Croake's reported decision of May 1966 referred to above, and without knowledge of Judge Croake's unreported decision of October 11, 1966. Noting this fact, Judge Croake wrote Judge Gagliardi on March 5, 1969, *fn1" stating in part:

 
"Throughout the Lodico proceedings, the judges of this court sitting on the case expressed their belief that the apportionment of local elective bodies is a matter better left to the state courts whose judges are more familiar with the localities and problems involved. (See opinion of May 20, 1966, p. 10-11). It would be particularly inappropriate now, with a state action pending, for this court to reassert jurisdiction. To do so would not result in any savings of time or effort since the findings made here are now nearly three years old. Any determination now should be made on the present factual situation."

 After receiving Judge Croake's letter of March 5, 1969. Judge Gagliardi on March 12, 1969 lifted the stay in the Abate action.

 Thereafter the Board of Supervisors of Rockland County adopted an interim plan of reapportionment weighing the vote of each supervisor in proportion to the population of each town. The frustration and unhappiness of the situation was intensified when the New York State Supreme ...


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