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OLIVER v. BOARD OF EDUC. OF NEW YORK

November 20, 1969

Gloria OLIVER, Plaintiff,
v.
BOARD OF EDUCATION OF the CITY OF NEW YORK, Board of Elections of the City of New York, Herman Badillo, individually and as Borough President of the Borough of Bronx, Bronx County, Abraham Stark, individually and as Borough President of the Borough of Brooklyn, Kings County, Percy E. Sutton, individually and as Borough President of the Borough of Manhattan, New York County, Sidney Leviss, individually and as Borough President of the Borough of Queens, Queens County, Robert T. Connor, individually and as Borough President of the Borough of Richmond, Richmond County, and Nelson A. Rockefeller, individually and as Governor of the State of New York, Defendants


McLean, District Judge.


The opinion of the court was delivered by: MCLEAN

McLEAN, District Judge.

This is an action by a resident and registered voter of Kings County, New York, seeking a judgment declaring that Section 11(1) of Chapter 330 of the New York Laws of 1969 and Section 2590-b(1)(a) of the Education Law of New York, McKinney's Consol. Laws, c. 16 are unconstitutional, on the ground that they deny plaintiff the equal protection of the laws, in violation of the Fourteenth Amendment. Plaintiff also asks this court to enjoin the enforcement of those sections.

 The action is brought under the civil rights act, 42 U.S.C. § 1983. This court's jurisdiction is based upon 28 U.S.C. §§ 1343(3) and (4).

 The statutes in question pertain to the board of education of the city school district of the city of New York. Section 11 of Chapter 330, which became effective on April 30, 1969, provides for an interim board of education to serve until a permanent board is elected. Subdivision 1 of Section 11 provides that the interim board shall consist of five members. Each borough president is to appoint one member.

 Section 4 of Chapter 330 adds a new article 52-A to the Education Law. This article, as far as material here, will not take effect until February 16, 1970. Section 13. Section 2590-b(1)(a) of that article provides that the permanent board shall consist of seven members, of whom two are to be appointed by the mayor. The remaining five are to be elected, one from each county in the city of New York.

 Plaintiff originally moved for a preliminary injunction. By order dated August 4, 1969, I directed that the action be set down for trial on October 1, 1969, and that, pursuant to Rule 65(a)(2), the hearing on the motion for a preliminary injunction would be consolidated with the trial. Thereafter the parties agreed that there was no material issue of fact to be tried and that the questions of law which the action raises could appropriately be decided on a motion for summary judgment. Plaintiff thereupon withdrew her request for a preliminary injunction and moved for summary judgment. Defendants board of education, board of elections, and the five borough presidents, have crossmoved for summary judgment in their favor. Defendant Rockefeller, sued individually and as Governor of the State of New York, has separately moved to dismiss the action on the ground, among others, that he is not a proper party defendant. *fn1"

 The parties agree that the questions presented can properly be decided by a single district judge. A three-judge court is not required since the statutes under attack are not statutes of general statewide application but relate only to the city of New York. Moody v. Flowers, 387 U.S. 97, 87 S. Ct. 1544, 18 L. Ed. 2d 643 (1967)

 Defendant Rockefeller's separate motion to dismiss may be quickly disposed of. He is not a proper party defendant here because there is no showing that he has any special relation to the enforcement of the statutes under attack. There is no need to join him as a defendant in order to raise the question of the constitutionality of the statutes. Fitts v. McGhee, 172 U.S. 516, 19 S. Ct. 269, 43 L. Ed. 535 (1899); Camacho v. Rogers, 199 F. Supp. 155 (S.D.N.Y.1961); Coon v. Tingle, 277 F. Supp. 304 (N.D.Ga.1967).

 Plaintiff concedes the correctness of this proposition and offers no opposition to this defendant's motion to dismiss the action as against him, both individually and as governor. Accordingly, that motion is granted. *fn2" I turn now to the merits of plaintiff's motion. It is conceded that the five boroughs of New York City, which are also five separate counties, are unequal in population. The only figures furnished the court are those of the 1960 census which are as follows: New York County (Manhattan) 1,698,281 Bronx County (Bronx) 1,424,815 Kings County (Brooklyn) 2,627,319 Queens County (Queens) 1,809,578 Richmond County (Richmond) 221,991

 Granted that these figures probably have changed somewhat since 1960, there is no doubt that Kings County (Brooklyn) is still substantially larger in population than the other counties, and that Richmond County is still substantially smaller.

 Plaintiff bases her claim of denial of equal protection squarely upon the "one man, one vote" principle. See Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964). Her position is that as a voter of Kings, the most populous county, her vote carries less weight than the vote of a resident of any of the other counties, thereby subjecting her to the "invidious discrimination" which the law condemns. Plaintiff asserts this contention against both sections of Chapter 330 which she attacks, i.e., Section 11(1) of the Act, pertaining to the interim board, and Section 2590-b(1)(a) of Article 52-A, which pertains to the permanent board. She sees no difference in principle between the two.

 To my mind there is a significant difference. Under Section 11(1) the interim board is appointed, not elected. The Supreme Court has said, in Sailors v. Board of Education of the County of Kent, 387 U.S. 105, 111, 87 S. Ct. 1549, 1553, 18 L. Ed. 2d 650 (1967):

 
"Since the choice of members of the county school board did not involve an election and since none was required for these nonlegislative offices, the principle ...

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