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June 12, 1972

Fred G. MORITT, Plaintiff,
Nelson A. ROCKEFELLER, Governor of the State of New York, et al., Defendants

The opinion of the court was delivered by: MCLEAN

McLEAN, District Judge:

Plaintiff, Fred G. Moritt, a judge of the Civil Court of New York City, basing jurisdiction on 28 U.S.C. §§ 1331, 1343 and 42 U.S.C. § 1983, has moved this three-judge court, convened pursuant to 28 U.S.C. §§ 2281, 2284, for a declaratory judgment, 28 U.S.C. § 2201, that N.Y. Election Law §§ 131, subd. 2 and 136, subd. 5 *fn1" (McKinney's Consol. Laws c. 17 1971) are unconstitutional and for a permanent injunction restraining defendants, various officials of New York State, from enforcing those sections of the Election Law.

Judge Moritt claims that he has been a candidate for election to the New York State Court of Appeals since December 1971. At the meeting of the Democratic State Committee, however, Judge Moritt was not selected as a candidate for the Court of Appeals and did not receive 25 per cent or more of the total vote cast in the Committee on any ballot and thus could have his name placed on the ballot in the Democratic primary only by petition. N.Y. Election Law § 131, subd. 2(c) (McKinney 1971).

 In his amended complaint, Judge Moritt alleges that Section 136, subd. 5 "renders it difficult if not impossible" for a candidate who was not selected by the State Committee to appear as a candidate at the primary because of the requirement that his petition must be signed by at least twenty thousand or five per centum, whichever is less, of the enrolled voters of the party, of whom not less than one hundred or five per centum, whichever is less, of such enrolled voters shall reside in each of onehalf of the congressional districts of the state. He alleges that he was unable to obtain the signatures required by the statute. He asks that this court (1) declare that Section 136, subd. 5 is unconstitutional, (2) adjudicate that a candidate for any statewide office shall be qualified to be such a candidate for nomination in the primary "by filing a petition containing not more than 12,000 signatures of the enrolled voters of his political party, which signatures may be obtained in any Congressional District or Districts in the State of New York," and (3) enjoin defendants from enforcing Section 136, subd. 5.

 Upon the argument, Judge Moritt conceded that he had not filed or tendered for filing any petition whatever within the time prescribed by law or at any other time. Defendants contend that under these circumstances no justiciable controversy as to the constitutionality of Section 136, subd. 5 is presented.

 I think that defendants' position is well taken. Inasmuch as Judge Moritt has not tendered any petition at all, he lacks standing to contend that a petition which complies with his views, although not with the statute, should have been accepted if it had been tendered and that he is entitled to be a candidate. Under the present circumstances, this court could not direct that Judge Moritt's name be placed upon the primary ballot. The case, as far as Section 136, subd. 5 is concerned, is not one of "sufficient immediacy and reality" to justify either injunctive relief or a declaratory judgment. Golden v. Zwickler, 394 U.S. 103, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969). I therefore decline to pass upon the constitutionality of Section 136, subd. 5.

 As to Section 131, subd. 2, Judge Moritt does have standing to raise the issue, since his claim does not depend upon whether or not he is himself a candidate. In this part of his complaint, he has challenged the system whereby candidates for the Democratic nomination for the Court of Appeals are designated by the State Democratic Committee. He has asked this court to enjoin enforcement of Section 131 of the Election Law, to declare the proceedings of the Democratic State Committee null and void, and to enjoin defendants from printing on the Democratic primary ballot the names of the candidates for the Court of Appeals who were nominated by the Democratic State Committee pursuant to Section 131 of the Election Law. It is Judge Moritt's position that Section 131, subd. 2 of the Election Law is violative of N.Y. Const. art. 6 because: (a) the statute improperly delegates to the Democratic State Committee the right to nominate candidates for the statewide office of Associate Justice of the New York Court of Appeals, whereas persons not so nominated have the difficult task of having to get on the ballot by petition; and (b) the statute fails to distinguish between candidates who run for statewide office in the executive branch of government and those who run for statewide office in the judicial branch. Whether Section 131 violates the state constitution is more properly a matter for state court resolution and this court should abstain from determining this claim.

 Plaintiff also raises the claim that these provisions of Section 131 violate Article 4, §§ 2, 4, the first and ninth amendments, and the equal protection and due process clauses of the fourteenth amendment of the U.S. Constitution. These claims, however, are vague and general at best, and since the Democratic State Committee is made up of two members elected from each assembly district (N.Y. Election Law § 11 (McKinney 1971)), and since there is no claim that any member of the committee, in performing public electoral functions, exercises voting power disproportionate to the number of voters each represents, and since Section 131, subd. 2 does not unreasonably "inhibit entry into the political arena, deny the right to vote or debase the weight of some votes," it does not present this court with a substantial constitutional question. New York State Democratic Party v. Lomenzo, 460 F.2d 250 (2d Cir. 1972). Even if plaintiff did present a valid federal constitutional claim, this court would still abstain from deciding the validity of Section 131, subd. 2 since a decision on the validity of Section 131 under the state constitution by the state court could well avoid the necessity of deciding the federal claim.

 Plaintiff's motion is denied. Defendants' motion to dismiss the action is granted on the grounds set forth above.

 Settle order on notice.

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