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RESTIVO v. CONSERVATIVE PARTY OF NEW YORK

March 6, 1975

JOSEPHINE RESTIVO, ANN BARLOW and HENRY E. DEL ROSSO, Plaintiffs,
v.
CONSERVATIVE PARTY OF THE STATE OF NEW YORK, BOARD OF ELECTIONS OF THE CITY OF NEW YORK, HENRY S. MIDDENDORF, JR., JAMES P. MOLINARO, LOUIS DE SALVIO, JOHN F. DENENY, JAMES G. KINSELLA, J. DANIEL MAHONEY, Defendants



The opinion of the court was delivered by: BRIEANT

MEMORANDUM AND ORDER

 Brieant, Jr., District Judge.

 Plaintiffs Josephine Restivo and Ann Barlow are residents of the 62nd Assembly District of the State of New York, which is situated partly in New York County and partly in Richmond County (Staten Island). They are, and were at the time of the filing of this complaint on October 22, 1974, registered voters, duly enrolled in the Conservative Party of the State of New York ("the Party"). Plaintiff DelRosso is an enrolled Republican, and was the Republican Party candidate for the office of Assemblyman of that district in the general election of November 5, 1974.

 Defendants include, besides the Conservative Party, the Board of Elections, certain individuals who are or were Conservative Party officials, and Louis DeSalvio, an enrolled Democrat who was the Assembly candidate of the Democratic and Conservative parties in that election.

 By their complaint, plaintiffs seek declaratory relief that certain of the rules and regulations (by-laws) of the New York and Richmond County Committees of the Conservative Party are unconstitutional. Originally, they requested injunctive relief against defendant DeSalvio, the Party and the Board of Elections to remove DeSalvio's name from the ballot as the Conservative Party Assemblyman candidate in the general election held November 5, 1974. At a hearing held October 25, 1974, this Court denied injunctive relief and made findings of fact and conclusions of law with respect thereto. The election was duly held. The vote was: Richmond County New York County Total Louis DeSalvio (Democratic Line) 5,268 5,737 11,005 Louis DeSalvio (Conservative Line) 940 331 1,271 Henry DelRosso (Republican Line) 2,201 2,565 4,766 Doris Jean Timberlake (Liberal Line) 892 1,175 2,067

 Although the election is over, the declaratory relief sought remains justiciable. Issues raised by plaintiffs, described below, are not moot, and are likely to recur. Cf. dissent of Oakes, J., in Nieves v. Oswald, (Nieves III), 498 F.2d 802, 816 (2d Cir. 1974) and cases there cited.

 Various defendants have moved to dismiss the complaint. As these motions are based in part upon affidavits, and in part upon information developed at the hearing in connection with the preliminary injunction, we treat the motion as having been made pursuant to Rule 56, F.R.Civ.P.

 Plaintiffs showed that they wished to have DelRosso, the Republican candidate for election to the 62nd A.D., nominated by the Conservative Party as its candidate for the same office. Since DelRosso was and is a Republican, his ability to become the candidate of the Conservative Party for this non-judicial office, and the ability of the plaintiffs Restivo and Barlow to choose him as the candidate of their Party was limited by provisions of the Wilson-Pakula law, New York Election Law, § 137, which provides in effect that a person who is not a member of a political party may not receive that party's nomination, or run in its primary unless that person receives the authorization of the majority of the party's state committee, or of such other group as the party rules may provide. *fn1"

 The state committee of the Party has by party rule, delegated the right to authorize candidacy of a non-member candidate to the county committee. *fn2" Party rules also provide that where, as here, the area from which an official is to be elected comprises parts of more than one county, and the rules of the county committees in the counties comprising the particular elective area are the same, and delegate as they do here, the powers of the county committee to its chairman, then the two or more chairmen of the two or more counties affected, may exercise the power jointly. *fn3"

 As a result of the direct and ordinary operation of the various rules of the state committee of the Party, and the county committees of New York County and Richmond County, it eventuated that on July 11, 1974, defendants Middendorf and Kinsella, as County Chairman, respectively, of New York and Richmond Counties, were permitted to meet, and did so, as a committee of two. As such, they unanimously authorized defendant DeSalvio to be designated as a candidate in the primary election of their Party to be held September 10, 1974. See their Certificate attached as exhibit to Affidavit of defendant Middendorf, sworn to November 15, 1974. Since no member of the Conservative Party entered the primary by designating petition as provided in § 134 of the New York Election Law, and since no such authorization was granted to DelRosso by the two County Chairmen, the filing of this Certificate by Middendorf and Kinsella, and DeSalvio's acceptance, had the effect of making him the uncontested nominee of the Conservative Party.

 The Court has subject matter jurisdiction. The party rules being challenged here derive their force from state statute, § 137 of the Election law, previously mentioned. Plaintiffs Restivo and Barlow are aggrieved thereby because the statute limits their right to vote. We need not reach the issue as to whether plaintiff DelRosso, a Republican, can be aggrieved by a rule of the Conservative Party limiting the right of its members to vote in the primary election, since plaintiffs Restivo and Barlow clearly have standing.

 In considering the federal grounds asserted in this action, we are invited to tread a well worn path. In McDonald v. Board of Election, 394 U.S. 802, 807, 22 L. Ed. 2d 739, 89 S. Ct. 1404 (1969), the Court reiterated the holding of Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 50, 3 L. Ed. 2d 1072, 79 S. Ct. 985 (1959), that "states have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised." Unless "lines are drawn on the basis of wealth or race" [Harper v. Virginia Board of Elections, 383 U.S. 663, 16 L. Ed. 2d 169, 86 S. Ct. 1079 (1966)] in which case "careful examination is warranted." We are told that (p. 808 of 394 U.S.):

 
"Though the wide leeway allowed the States by the Fourteenth Amendment to enact legislation that appears to affect similarly situated people differently, and the presumption of statutory validity that adheres thereto, admit of no settled formula, some basic guidelines have been firmly fixed. The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal. Legislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classifications will be set aside only if no grounds can be conceived to justify them. See McGowan v. Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961); Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552, 91 L. Ed. 1093, 67 S. Ct. 910 (1947); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 55 L. Ed. 369, 31 S. Ct. 337 (1911). With this much discretion, a legislature traditionally has been allowed to take reform 'one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,' Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489, 99 L. Ed. 563, 75 S. Ct. 461 (1955); and a legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked. See Ozan Lumber Co. v. Union County National Bank, 207 U.S. 251, 52 L. Ed. 195, 28 S. Ct. 89 (1907)."

 Recently in Seergy v. Kings County Republican Committee, 459 F.2d 308 (2d Cir. 1972), the Court considered a party rule adopted pursuant to § 12 of the Election law, claimed to violate the "one man -- one vote" principle. After reviewing the important state functions ...


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