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PHILLIPS v. ROCKEFELLER

December 2, 1970

Randolph PHILLIPS, in his own right individually and as Chairman of the Committee for Fair Play for Voters; Ethel Frankel, Nina Phillips and Dr. Samuel J. Phillips in their own right individually and as members of the Committee for Fair Play for Voters, Plaintiffs,
v.
Nelson A. ROCKEFELLER, Governor of the State of New York, and John P. Lomenzo, Secretary of State of the State of New York, Defendants


Edelstein, District Judge.


The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge.

Three candidates competed for the office of United States Senator at the general election held in New York on November 3, 1970. Of the total number of votes cast James L. Buckley polled 39 percent, Richard L. Ottinger 37 percent, and Charles E. Goodell 24 percent. *fn1" No candidate received a majority of the total votes cast. This suit, commenced on November 4, 1970, essentially attempts to raise the novel issue of whether or not the Seventeenth Amendment to the United States Constitution requires that a candidate must receive a majority of the votes cast before he can be elected to the office of United States Senator. The plaintiffs allege that they are citizens and registered voters of the State of New York who voted in the November 3, 1970, election for United States Senator. They also allege that they bring this action "* * * in their own right individually and as Chairman and members respectively of The Committee for Fair Play for Voters and also on behalf of all registered voters similarly situated." Defendants are the Governor of the State of New York and the Secretary of State of the State of New York. Counsel for James L. Buckley was permitted to appear as amicus curiae in opposition to plaintiffs.

 Plaintiffs contend that a candidate for the United States Senate cannot be "elected by the people" within the meaning of the Seventeenth Amendment *fn2" unless that candidate receives a majority of the votes cast in the election. Plaintiffs allege that defendants intend "to enforce, operate and execute § 296 of the Election Law of the State of New York so as to certify said James L. Buckley as the duly elected United States Senator of the State of New York * * *" despite the fact that he received only 39 percent of the votes cast. It is claimed that execution and enforcement of section 296 *fn3" in this manner abridges plaintiffs' rights under the Seventeenth Amendment to be represented by a senator who is elected by a majority vote. It is also claimed that section 296 itself is unconstitutional because it does not make any provision for a run-off election between the two leading candidates so that one of them may attain a majority vote.

 Plaintiffs seek the following substantive relief: (1) An injunction *fn4" prohibiting the defendants from enforcing section 296 of the Election Law of the State of New York, and from "certifying thereunder" the election of any candidate as United States Senator unless a run-off election is held between the two candidates who polled the most votes; (2) "A declaratory judgment that Section 296 of the Election Law of the State of New York in failing to provide for a run-off election is too vague and inadequate to constitute a lawful and constitutional exercise of the legislative power of the State of New York under the Seventeenth Amendment to the Constitution of the United States;" and (3) a mandatory injunction ordering Governor Rockefeller to issue a writ for a run-off election between the two leading candidates. The complaint also seeks the convening of a three-judge statutory court pursuant to 28 U.S.C. §§ 2281 and 2284 (1964).

 This case is now before the court on a motion by the plaintiffs for the convening of such a court. Defendants oppose this motion on the grounds that the complaint should be dismissed because the court lacks subject matter jurisdiction, this case is not ripe for decision, and plaintiffs have failed to join indispensable parties. Defendants have also made an abstention argument to the court. In addition, although the defendants have not precisely raised the question of whether or not a substantial federal question exists, the court cannot overlook this issue either.

 Jurisdiction in the complaint is predicated upon the Seventeenth Amendment and 28 U.S.C. §§ 2281 and 1331 (1964).

 The Seventeenth Amendment does not confer jurisdiction upon this court, nor does 28 U.S.C. § 2281 (1964). Section 2281 states that only a three-judge district court may enjoin the enforcement of a state statute on the grounds of unconstitutionality. A jurisdictional predicate separate and apart from section 2281 must be present before a statutory court may be held to have jurisdiction over a matter. E.g., Nieves v. United States, 280 F. Supp. 994, 997 (S.D.N.Y. 1968).

 28 U.S.C. § 1331 (1964) is the statutory authority which gives district courts jurisdiction to hear cases raising "federal questions." No action may be brought under section 1331 unless the matter in controversy exceeds $10,000 exclusive of interests and costs. This complaint does not allege this jurisdictional amount, nor has any attempt been made to demonstrate that this jurisdictional amount requirement can be met in any event. Hence plaintiffs cannot rely on section 1331. Jacobs v. Tawes, 250 F.2d 611 (4th Cir. 1957); See Boyd v. Clark, 287 F. Supp. 561 (S.D.N.Y. 1968), aff'd on other grounds, 393 U.S. 316, 89 S. Ct. 553, 21 L. Ed. 2d 511 (1969).

 The complaint therefore is fatally deficient in its jurisdictional allegations. In their reply memorandum plaintiffs practically concede as much since they disregard the jurisdictional ground alleged in the complaint and instead argue that this court has jurisdiction under 28 U.S.C. § 1343(3) (1964), 42 U.S.C. §§ 1983 and 1988 (1964). Plaintiffs have not amended their complaint so as to allege their new jurisdictional ground. Thus only the original complaint stands before the court. Nevertheless, for purposes of this motion only, the court shall deem this complaint as having been amended to allege the new jurisdictional bases.

 Section 1988 *fn5" is not a jurisdictional provision but is one that is addressed to the rule of law and the scope of the remedy to be applied in civil rights cases. Section 1343(3) *fn6" is a jurisdictional provision; it does not contain an amount in controversy requirement. However, section 1343(3) is only a partial answer to plaintiffs' problem. This section merely confers upon federal district courts jurisdiction over civil actions authorized by other provisions of law. Thus resolution of the jurisdictional issue depends upon the terms of section 1983 because, unless a cause of action is stated under that section, section 1343(3) cannot be applied.

 Section 1983 provides that:

 
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

 To invoke section 1983 a claim must be predicated upon a denial of a federal constitutional or statutory right by a person acting under color of state law. E.g., Basista v. Weir, 340 F.2d 74, 79 (3rd Cir. 1965). This complaint does not support such a claim. The plaintiffs have alleged that defendants, who are concededly state officials, by their enforcement of section 296 of the New York Election Law are depriving plaintiffs of their claimed Seventeenth Amendment right to be represented by a Senator elected by a majority of those voting in the November 3, 1970, election. However, analysis of the complaint demonstrates that there is nothing contained in this complaint to support the conclusion that these defendants are depriving plaintiffs of a federal constitutional right pursuant to state authority.

 Federal law and section 296 of the New York Election Law do not conflict. The Seventeenth Amendment grants to each of the states the right to be represented in the Senate by two Senators who shall be "elected by the people thereof" and 2 U.S.C. § 1 (1964) provides that the election of Senators shall occur "At the regular election held in any State next preceding the expiration of the term for which any Senator was elected to represent such State * * *." Section 296, in relevant part, provides as well that Senators shall be elected by the people and that the election shall occur at the general election next preceding the expiration of the incumbent's term. Section ...


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