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CAREY v. KLUTZNICK

October 1, 1980

Hugh L. CAREY, Edward I. Koch, Alan Chou, Rose L. Dawson,Shmuel Lefkowitz, Michael Loizou, Edwin Martinez, Walter E. Marx, Brunilda Pacheco, Lamuel Stanislaus, the State of New York, and the City of New York, Plaintiffs,
v.
Philip M. KLUTZNICK, Secretary of Commerce, Vincent P. Barabba, Director, Bureau of the Census, William F. Hill, Regional Director, New York Region, Bureau of the Census, Richard Bitzer, Acting Assistant Regional Director, New York Region, Bureau of the Census, Arthur G. Dukakis, Regional Director, Boston Region, Bureau of the Census, United States Department of Commerce, Bureau of the Census, Jimmy Carter, President of the United States, and Edmund L. Henshaw, Jr., Clerk of the United States House of Representatives, Defendants



The opinion of the court was delivered by: WERKER

This action was commenced by plaintiffs Hugh L. Carey, Governor of the State of New York, and Edward I. Koch, Mayor of the City of New York, in both their official and individual capacities, several other citizens, voters and taxpayers residing within New York State, and the City and State of New York. Named as defendants are Philip M. Klutznik, Secretary of Commerce, Vincent P. Barabba, Director of the Bureau of the Census, William Hill and Arthur G. Dukakis, Regional Directors of the Census Bureau for the New York and Boston Regions, respectively, Richard Bitzer, Acting Assistant Regional Director of the Census Bureau for the New York Region, Edmund L. Henshaw, Jr., Clerk of the United States House of Representatives, the United States Department of Commerce, Bureau of the Census, and Jimmy Carter, President of the United States. By commencement of this action, plaintiffs seek to vindicate their right, under the Constitution and laws of the United States, to maintain the efficacy of their votes. See U.S.Const. art. I, § 2, cl. 3; U.S.Const. amends. I, V, XIV, XV; 13 U.S.C. § 1, et seq.; 5 U.S.C. § 551, et seq. They hope to accomplish this by obtaining declaratory and injunctive relief requiring the defendants to adjust census figures in a manner that would compensate for the expected undercount of the population of New York State. The jurisdiction of this Court is invoked under 28 U.S.C. §§ 1331, 1337, 1361, 2201, 2202, and 5 U.S.C. § 702.

Plaintiffs have moved for preliminary injunctive relief seeking to enjoin the defendants Klutznick, Barabba, Hill, Bitzer and the Bureau of the Census from closing any District Offices in New York State until plaintiffs have had an adequate opportunity to review preliminary census figures and until defendants have taken a variety of measures *fn1" to remedy what plaintiffs allege is a severe undercount of the populations of New York City and New York State. Plaintiffs also seek an order requiring the Census Bureau to undertake a statistical adjustment of the populations of the City and State to compensate for the undercount and have moved for partial summary judgment pursuant to Fed.R.Civ.P. Rule 56(a) on the issue of whether the Census Bureau has the authority to utilize statistical adjustments for the purpose of apportioning representatives in Congress. Defendants have moved under Fed.R.Civ.P. Rule 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief may be granted, lack of standing, lack of a justiciable claim under the political question doctrine, and lack of ripeness. Defendants also have moved pursuant to Fed.R.Civ.P. Rule 26(c) for an order staying all discovery pending disposition of their motion to dismiss. This motion already has been disposed of by prior orders of the Court. Defendants also have moved for partial summary judgment under Fed.R.Civ.P. Rule 56(a) on the issue of whether the procedures adopted by the Census Bureau for conducting the 1980 Census were rational and were executed in a rational manner. The Court will now decide only the defendants' motion to dismiss, plaintiffs' motion for partial summary judgment and defendants' motion for partial summary judgment. Hearings on plaintiffs' motion for a preliminary injunction have been deferred until October 6, 1980.

BACKGROUND

 The United States Constitution provides that "(representatives) shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed." U.S.Const. amend. 14, § 2. The population figures upon which apportionment is based are derived from the results of the decennial census. See U.S.Const. art. 1, § 2, cl. 3. Plaintiffs allege that there has been a serious undercount of the populations of New York State and New York City in the present decennial census and that because of this, New York will lose at least one representative to which it is entitled and also will be denied substantial amounts of federal funds that are allocated on the basis of census population figures. Plaintiffs assert that the undercount is a well known phenomenon that has existed in the past and will occur again in 1980. They claim that the undercount is particularly severe with respect to certain classes of so called "hard to enumerate" persons and certain areas of the country. The "hard to enumerate" groups include Blacks, Hispanics, other racial and ethnic minorities, aliens, non-English speaking individuals, the poor, and those living in high-crime areas. According to plaintiffs, New York State and New York City contain a disproportionate number of the "hard to enumerate" when compared to the nation as a whole. As a consequence, they claim that the undercount for New York will be substantially higher than that for other areas of the country. Plaintiffs suggest that the undercount can be remedied by the use of statistical and demographic techniques currently available to the Census Bureau but that it has refused and will continue to refuse to do so at least for the purpose of apportionment of representatives. *fn2"

 DISCUSSION

 Standing

 Defendants' contend that plaintiffs' lack standing to maintain this action because the harm they raise is merely speculative and because they are unable to demonstrate that the relief they seek will benefit them personally. This Court first notes that when ruling on a motion to dismiss for lack of standing, all material allegations of the complaint must be accepted as true and the complaint construed in favor of the complaining party. Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d 343 (1975). Consequently, the court must accept as true that there will be a disproportionate undercount of the populations of New York City and New York State, resulting in an "undercount for New York (that) will be substantially higher in percentage terms (and in absolute numbers) than it will be for the rest of the United States." Complaint at para. 33. It also must accept as true that New York State will be deprived of its full share of representatives in Congress if the undercount is not remedied, complaint at para. 39, and that there are feasible means by which the Census Bureau can adjust its count to compensate for the undercount. Complaint at para. 35. For purposes of this motion, this court also must assume that the Census Bureau's failure to adopt procedures to remedy the undercount, if established, would be adjudged to violate the constitutional rights of plaintiffs. Complaint at para. 55; see Warth v. Seldin, 422 U.S. at 502, 95 S. Ct. at 2207.

 The concept of standing involves both constitutional and prudential limitations on the exercise of a court's jurisdiction. It requires that a court decide only cases or controversies. As stated by Mr. Justice Powell in Warth v. Seldin:

 
(as) an aspect of justiciability, the standing question is whether the plaintiff has "alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal court jurisdiction and to justify exercise of the court's remedial powers on his behalf.... A federal court's jurisdiction ... can be invoked only when the plaintiff himself has suffered "some threatened or actual injury resulting from the putatively illegal action ....'

 Warth v. Seldin, 422 U.S. 490, 498-99, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343 (1975), quoting Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962), and Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S. Ct. 1146, 1148, 35 L. Ed. 2d 536 (1973); see Alexander v. Yale University, 631 F.2d 178, (2d Cir. 1980). Thus, the elements comprising standing are (1) concrete harm to the plaintiff (2) caused by the challenged actions of the defendant (3) that can be redressed by the Court. See Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72-74, 98 S. Ct. 2620, 2630-2631, 57 L. Ed. 2d 595 (1978).

 While a "generalized grievance" shared by a large number of citizens usually will not justify the exercise of jurisdiction, see Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1974); United States v. Richardson, 418 U.S. 166, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974), the mere circumstance that many individuals share the same injury is an insufficient ground for precluding an aggrieved person from seeking review of an agency's action. United States v. SCRAP, 412 U.S. 669, 686, 93 S. Ct. 2405, 2415, 37 L. Ed. 2d 254 (1973).

 Standing is not derived from the merits of a plaintiff's claim that certain conduct is illegal, but it frequently may depend on "whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief." Warth v. Seldin, 422 U.S. at 500, 95 S. Ct. at 2206. In Baker v. Carr, for example, plaintiffs sued under 42 U.S.C. §§ 1983 and 1988 alleging that a Tennessee statute apportioning the state legislature violated the equal protection clause because it created severe imbalances in the proportion of voting population to representation. Baker v. Carr, 369 U.S. at 207, 82 S. Ct. at 704. The Court held that plaintiffs had standing to bring the suit, stating that plaintiffs had asserted " "a plain, direct and adequate interest in maintaining the effectiveness of their votes,' not merely a claim of "the right, possessed by every citizen, to require that the Government be administered according to law.' " Id. at 208, 82 S. Ct. at 705, quoting Coleman v. Miller, 307 U.S. 433, 438, 59 S. Ct. 972, 975, 83 L. Ed. 1385 (1939), and Fairchild v. Hughes, 258 U.S. 126, 129, 42 S. Ct. 274, 275, 66 L. Ed. 499 (1922). Cases in which voter standing was found to exist that were cited with approval by the Baker Court were not limited to challenges to apportionment of state legislatures. Rather, they included challenges by state residents to apportionment of federal congressional districts. See, e.g., Colegrove v. Green, 328 U.S. 549, 550, 568, 66 S. Ct. 1198, 1209, 90 L. Ed. 1432 (1946).

 Based on a review of the foregoing authorities, it would appear that the claim asserted by the plaintiffs in the case at bar is indeed cognizable by this court. Faced with a similar challenge to the census, however, the Court in FAIR v. Klutznick, 486 F. Supp. 564 (D.D.C.1980), found that plaintiffs had failed to establish standing since they had been unable to demonstrate that a concrete harm would occur to one of them and that the relief requested would benefit them personally. The Court stated:

 
While the plaintiffs estimate that between one and sixteen congressional seats will be affected depending on its inclusion of illegal aliens, they can do no more than speculate as to which states might gain and which might lose representation.... Depending on how many illegal aliens there are, where they live, how accurate the census count is, and the interplay of all the other population factors which affect apportionment, any of a number of states might benefit by the relief requested by the plaintiffs; the only effect which seems inevitable is that California would lose seats, though again, how many is a matter of speculation. Therefore, none of the plaintiffs are able to allege that the weight of his or her vote in the next decade will be affected by the expected method of taking the census and apportioning congressional seats.... Despite diligent ...

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