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SAMUEL J. ABATE v. PAUL F. MUNDT ET AL. (10/08/69)

COURT OF APPEALS OF NEW YORK 1969.NY.43009 <http://www.versuslaw.com>; 253 N.E.2d 189; 25 N.Y.2d 309 decided: October 8, 1969. SAMUEL J. ABATE, AS A TAXPAYER OF THE COUNTY OF ROCKLAND, AND AS A REPRESENTATIVE OF OTHERS SIMILARLY SITUATED, APPELLANT-RESPONDENT, AND JUNE MOLOF ET AL., AS INDIVIDUALS AND AS REPRESENTATIVES OF OTHERS SIMILARLY SITUATED, ET AL., INTERVENORS-APPELLANTS-RESPONDENTS,v.PAUL F. MUNDT ET AL., CONSTITUTING THE BOARD OF SUPERVISORS OF THE COUNTY OF ROCKLAND, ET AL., RESPONDENTS-APPELLANTS Abate v. Mundt, 33 A.D.2d 660, affirmed. Counsel Frank P. Barone for appellant-respondent. Doris Friedman Ulman for June Molof and others, intervenors-appellants-respondents. Counsel Paul H. Rivet for Cornelius O'Sullivan and others, intervenors-appellants-respondents. Counsel J. Martin Cornell, County Attorney, for respondents-appellants. Counsel Louis J. Lefkowitz, Attorney-General (Robert W. Imrie and Ruth Kessler Toch of counsel), in his statutory capacity under section 71 of the Executive Law. Judges Scileppi, Bergan, Breitel and Gibson concur with Judge Burke; Chief Judge Fuld dissents in part and votes to modify in a separate opinion in which Judge Jasen concurs. Author: Burke


Abate v. Mundt, 33 A.D.2d 660, affirmed.

Judges Scileppi, Bergan, Breitel and Gibson concur with Judge Burke; Chief Judge Fuld dissents in part and votes to modify in a separate opinion in which Judge Jasen concurs.

Author: Burke

 Rockland County is presently governed by a Board of Supervisors, consisting of the Supervisors of each of the county's five constituent towns. In early 1966, a Federal District Court, upon its finding that the board was malapportioned, ordered that a plan be devised which would satisfy the requirements of the Equal Protection Clause and that such plan be submitted to the voters of the county for their approval. (Lodico v. Board of Supervisors, 256 F. Supp. 442.) Pursuant to that order, three plans were devised and submitted to the voters but were rejected at the polls.

In September, 1968, the present action was brought to compel the board to reapportion in accordance with constitutional requirements. In response, the board submitted a weighted voting scheme as an interim measure but, upon the plaintiffs' motion, that plan was rejected at Special Term. The board then devised and submitted the plan approved in the courts below, which is the subject of the present appeal.

The plan as adopted provides for a County Legislature composed, on the basis of the population of the county as of 1969, of 18 members chosen from 5 districts which correspond to the county's 5 constituent towns. Each district is assigned its legislators according to the district's population in relation to the population of the smallest district. The smallest district, Stony Point, has a population of 12,114 and is assigned one representative in the County Legislature. The number of representatives to be assigned to each of the other districts is determined by dividing the population of each by the population of the base district, Stony Point, the number of representatives being the whole number resulting from that computation, plus any major fraction. The result in tabular form is as follows:

District Population No. of Representatives

Stony Point 12,114 1

Haverstraw 23,676 2

Orangetown 52,080 4

Clarkstown 57,883 5

Ramapo 73,051 6

Each representative is to be elected at large within the district so that each district other than Stony Point will be a multi-member district. Since the population of none of the other districts is an exact multiple of the population of Stony Point, there is some variation among districts in terms of the population per legislator, with the result that Stony Point is 0.3% "over-represented," Haverstraw is 2.5% "over-represented," Orangetown is 7.1% "under-represented," Clarkstown is 4.8% "over-represented," and Ramapo is 0.2% "under-represented." The plaintiffs attack the plan both on the ground that the board has made no attempt at achieving equality of representation in terms of population and on the ground that the utilization of multimember districts is inherently defective. In addition, the plaintiffs attacked the so-called "two hats" provision of the plan under which each Town Supervisor, by virtue of his election to that office, would also automatically become a member of the County Legislature.

Special Term approved the apportionment plan but modified the "two hats" provision so as to require that Town Supervisors, if they wish to hold seats in the County Legislature, must stand separately for election to that office. The Appellate Division, Second Department, affirmed that determination without opinion, with one Justice dissenting on the ground that the plan merely sought to achieve the best apportionment possible ...


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