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KORZENIK v. MARROW

May 19, 1975

EMILY KORZENIK, ELAINE REISER, ALICE ROBINSON, BARBARA ROSENTHAL, BETTY THOMPSON, DORIS FINGER, ALICE GOULDER, and JUDITH LEVINE, Plaintiffs,
v.
SEYMOUR A. MARROW, President; GORDON HENDERSON, Vice President; JEFFREY STEINKAMP, Secretary; RICHARD L. GERLOFF, Treasurer; WILLARD B. DEAN, FRANK GORDON, ALFRED P. SLANER, MICHAEL A. HESSBERG, GERALD J. McMAHON, SEYMOUR E. SIMS, ADRIAN G. HIRSCH, and WILLIAM F. KOEGEL, Members of the Board of Governors of The Town Club, and THE TOWN CLUB, an unincorporated association, Defendants



The opinion of the court was delivered by: CONNER

MEMORANDUM AND ORDER

 CONNER, D. J.

 Plaintiffs, women who reside in the Village of Scarsdale, *fn1" commenced this action pursuant to 42 U.S.C. ┬ž 1983 for a declaratory judgment and injunction ordering The Town Club of Scarsdale to admit otherwise qualified women to membership. Plaintiffs contend that, in view of The Town Club's role in the Scarsdale electoral process, its exclusion of women is violative of the Nineteenth Amendment and the equal protection clause of the Fourteenth Amendment to the United States Constitution. Alternatively, they seek an order limiting the political role of the Club.

 The action is before the Court on cross motions for summary judgment.

 I.

 Defendant Town Club is a civic association which was organized to "promote concerted and intelligent action on all matters affecting the welfare of Scarsdale." Town Club Constitution, Art. II. Membership in The Town Club is open to all men who are interested in the stated aims of that organization and who have been residents of Scarsdale for at least six months.

 The Town Club, which receives no public funding and finances its activities solely from the dues paid by its members, has established committees and procedures to influence decisions on such aspects of Scarsdale community life as: education; fiscal affairs; government services; land, buildings and highways; recreation facilities; library services; environmental problems; and, the non-partisan system for electing officials to village offices.

 The Town Club was organized in 1904 by a group of men interested in the civic and political life of Scarsdale. H. Hansen, Scarsdale 108 (1954) [hereinafter cited as Hansen]. The non-partisan system for electing local officials originated in 1911 in an attempt to keep the Village government free from political strife. Hansen 126-29. In 1930, members of the Republican Town Committee and members of The Town Club decided that the non-partisan system should be given a wider base. On February 19, 1930, the Republican caucus passed a resolution declaring that the caucus should appoint a non-partisan committee to select candidates for office. This committee, composed of both Democrats and Republicans, was to make the nominations that were ordinarily made by the Democratic and Republican Town Committees. Hansen 130-31.

 The civic leaders determined that The Town Club should draft a system which would formalize their goals, and in December 1930, the Non-Partisan Resolution (NPR) was passed by The Town Club. Hansen 131. The NPR embodies the written rules and procedures which govern the actual operation of the Scarsdale non-partisan system. This complex method for selecting the non-partisan candidate for Mayor, members of the Village and Town Boards, and Police Justice, has remained in effect, with minor changes, until the present. Plaintiffs allege, and defendants have not denied, that since 1955 non-partisan candidates have been opposed in only three elections and have never been defeated.

 Moreover, The Town Club has remained the "custodian" of the NPR, and amendments to the NPR must be voted on and approved by The Town Club members.

 II.

 The Non-Partisan System -- as provided for by the NPR

 The NPR, as last amended in 1974, divides Scarsdale into six "Non-Partisan Units," each consisting of three contiguous election districts. Each unit sends six members, elected by the residents of the unit, to sit on the Citizens Nominating Committee. The Committee consists of the thirty-six voting members selected by the units, as well as five non-voting members. Two of the five non-voting members are the President and Vice-President of The Town Club; these two men serve, respectively, as Chairman and Vice-Chairman of the Citizens Nominating Committee. The Vice-President of The Town Club serves as Chairman in the President's absence. The other non-voting members are: 1) a representative of the Scarsdale Woman's Club; 2) a representative of the Village Club of Scarsdale (a women's club); and 3) a representative designated by the Conference of Scarsdale Neighborhood Association Presidents.

 The non-voting members advise and consult with the voting members with respect to the nomination of candidates as well as all matters within the jurisdiction of the Citizens Nominating Committee. The Chairman of the Citizens Nominating Committee has various duties, including: 1) assuring that the Village Club of Scarsdale, the Scarsdale Woman's Club and the Conference of Scarsdale Neighborhood Association Presidents provide a non-voting member for the Citizens Nominating Committee; 2) assuring that the names of the members of the Citizens Nominating Committee are published in the local press; 3) sending out notices, instructions and background data to all members; 4) setting dates, times and places of the meetings; 5) soliciting names of possible candidates for Village offices; 6) distributing biographical data, which have been submitted with respect to possible candidates, to members; 7) chairing the meetings of the Citizens Nominating Committee; 8) inviting the Mayor and members of the Village Board to attend the first meeting of the year in order to discuss problems which may face the elected officials in the ensuing year and suggest special qualifications of Board members which would be desirable; 9) visiting persons selected as possible candidates in order to seek formal acceptance; and, 10) obtaining the formal nominating petitions required by the New York State Election Law.

 Selection of the non-partisan candidate is finally determined by a majority vote of the thirty-six voting members of the Citizens Nominating Committee.

 Recently, The Town Club amended the NPR *fn2" to establish the Village Government Non-Partisan Procedure Committee, in the place of The Town Club, as the body which has the obligation of "administering the procedure for election of the Citizens Committee" and "from time to time recommend[ing] amendments to the Non-Partisan Resolution." NPR Art. II.

 The Village Government Non-Partisan Procedure Committee is a committee of thirteen persons. They are: the chairman and six other members who are appointed by The Town Club; two members of the Village Club of Scarsdale (a women's club); two members of the Scarsdale Woman's Club; and two members of the Scarsdale League of Women Voters (which is open to both men and women).

 This Committee is charged with responsibility for preparing and distributing a detailed memorandum for use at the Unit meetings, and assuring that the unit nominating committee (the conduit for placing petitions bearing the names of possible candidates in nomination at the unit meeting) is complete. It also has the responsibility of keeping the system under continual review and making recommendations for changes in the NPR on the basis of this review.

 By the date fixed for the holding of any party caucus for the purpose of making nominations for the village or town elections (or, if practicable, at least seven days prior to such date), the Citizens Nominating Committee is responsible for causing the independent nomination of the person selected through its deliberations to be filed.

 III.

 Plaintiffs contend that The Town Club's involvement in Scarsdale's elective process deprives women of an equal voice in the electoral system. In this connection, they invoke the deep-south voting rights cases, although they do not assert that the system in Scarsdale parallels those cases. Indeed, they do not claim that they have been deprived of the right to vote for the non-partisan candidate in the non-partisan election. They contend, however, that since the NPR excludes women from participating in any vote to change the character of the non-partisan system, as well as providing that the Chairman and Vice Chairman of the Citizens Nominating Committee shall be the President and Vice-President of The Town Club and that seven of the thirteen members of the Village Government Non-Partisan Procedure Committee shall be appointed by the President of The Town Club, it is unconstitutionally restrictive of the Scarsdale women's right to participate in the procedure whereby officers of the Village are selected.

 Defendants, on the other hand, contend that The Town Club is a wholly private, civic organization which is in no way subject to the constitutional strictures placed upon the State or any other organization which is performing a function traditionally performed by the State. Furthermore, defendants deny that the system is in any way restrictive of women's participation in Scarsdale elections, and assert that it was specifically devised to assure that all residents of Scarsdale more fully participate in the selection of candidates for Village offices. Defendants further assert that although The Town Club does retain the right to amend the NPR, it does so only after receiving the direct or tacit approval of the other civic organizations, and that it functions as the "custodian" of the NPR only because no other organization has expressed the desire to do so. Finally, defendants ...


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