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October 30, 1981

James F. BASS, as President of the New York City Board of Elections; R. Wells Stout, as Chairman of the New York State Board of Elections; Hugh L. Carey, as Governor of the State of New York, Defendants

The opinion of the court was delivered by: GOETTEL

Under the New York Election Law, persons who have been adjudged incompetent, or are involuntarily committed to a mental institution by court order, lose their right to vote. N.Y. Election Law § 5-106(6) (McKinney 1978) ("section 5-106(6)"). Plaintiff Manhattan State Citizens' Group, Inc. ("Citizens' Group"), a not-for-profit corporation, some of whose members are involuntarily committed patients of the Manhattan Psychiatric Center ("Manhattan State"), challenge the constitutionality of this statute on the grounds that it violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution and the Constitution of the State of New York, and the suffrage provisions of Article II, Sections 1 and 3 of the New York Constitution. In its complaint, the plaintiff seeks a declaratory judgment, injunctive relief, and attorneys' fees. Because of the upcoming election, they have moved for a preliminary injunction restraining the defendants from enforcing this statute.

Named as defendants are the presidents of the New York City and New York State boards of elections and Hugh Carey, the Governor of New York. The state defendants have filed opposing papers and have cross-moved for summary judgment on the ground that the plaintiff lacks standing to prosecute this action. New York City takes a more passive approach. Its position is that it merely enforces the state election law and will comply with any order of this Court.

I. Standing

 The Supreme Court set forth the criteria under which an organization may assert the claims of its individual members in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977). It noted that an organization has standing if


(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

 Id. 432 U.S. at 343, 97 S. Ct. at 2441.

 The only aspect of standing in dispute is whether the members of the Citizens' Group have standing to sue in their own right. The defendants contend that the plaintiff lacks standing because it failed to demonstrate that its members would be otherwise qualified to vote in the absence of the challenged provision, that is, that it has members who are United States citizens of at least eighteen years of age who are residents of the State, County, and City of New York, who have been involuntarily committed by court order and who have not been adjudged incompetent, and who are not precluded from voting by reason of having been convicted of a felony. Although the plaintiff should have been more careful to provide this information in its complaint, the plaintiff's counsel has represented to the Court that the Citizens' Group does include involuntarily committed patients at Manhattan State who are otherwise qualified to vote and, indeed, who plan to vote in the 1981 election if the Court grants the relief sought by the plaintiff. The plaintiff is directed to provide the names and pertinent backgrounds of some of these individuals to ensure that the Court has jurisdiction to hear this matter.

 II. Statutory Background

 Section 5-106(6) of the New York Election Law provides that


(n)o person who has been adjudged incompetent or committed to an institution for the mentally ill by order of a court of competent judicial authority shall have the right to register for or vote at any election in this state unless thereafter he shall have been adjudged competent or released from such institution pursuant to law.

 N.Y. Election Law § 5-106(6) (McKinney 1978). Although this is a seemingly simple statutory provision, a few comments are necessary to place this case into proper focus. First, persons who commit themselves voluntarily and persons involuntarily committed by means other than court order retain their right to vote. Second, the plaintiff does not challenge that aspect of the statute that excludes persons adjudged incompetent from voting. As will be discussed below, competency proceedings are quite different from commitment proceedings.

 a. Commitment Proceedings

 Article 9 of the New York Mental Hygiene Law *fn1" sets forth the methods by which a mentally ill person can be admitted to a hospital *fn2" as an in-patient. There are generally four admission classifications: informal admissions, voluntary admissions, involuntary admissions on medical certification, and emergency admissions for immediate observation, care and treatment. *fn3" Depending upon the admission procedure that has been used in a particular case, the hospital must at some point apply for a court order if it is to retain the patient on an involuntary basis. *fn4"

 The standard for granting court authorization to retain an involuntary patient is whether the court is "satisfied that the patient requires continued retention for care and treatment." N.Y. Mental Hyg. Law § 9.33 (McKinney 1978) ("MHL § 9.33"). Although this standard seems somewhat vague, when MHL § 9.33 is read in conjunction with the definitional section, MHL § 9.01, it becomes quite clear. For example, the phrase, "need for retention" means "that a person who has been admitted to a hospital ... is in need of involuntary care and treatment in a hospital for a further period." MHL § 9.01 (emphasis added). The phrase, "in need of involuntary care and treatment" is defined as a person having a mental illness "for which care and treatment as a patient in a hospital is essential to such person's welfare and whose judgment is so impaired that he is unable to understand the need for such care and treatment." Id. (emphasis added). The phrase "in need of care and treatment" is defined as a person having a mental illness "for which in-patient care and treatment in a hospital is appropriate." Id. When read together, these various definitions create the following standard for court authorized retention: the person to be committed must have a mental illness for which care and treatment in a hospital is essential to such person's welfare and, in addition, the person's judgment must be so impaired that he is unable to understand that he has a mental illness for which in-patient care and treatment in a hospital is appropriate.

 b. Competency Proceedings

 Commitment proceedings should not be confused with competency proceedings. *fn5" See Winters v. Miller, 446 F.2d 65, 68 (2d Cir.), cert. denied, 404 U.S. 985, 92 S. Ct. 450, 30 L. Ed. 2d 369 (1971); Gurland v. Beckenstein, 286 A.D. 704, 146 N.Y.S.2d 830 (2d Dep't), appeal denied, 309 N.Y. 969, 132 N.E.2d 331 (1955). Section 29.03 of the MHL provides that an order authorizing retention of a patient shall not "be construed or deemed to be a determination or finding that such person is incompetent or is unable adequately to conduct his personal or business affairs." Thus, absent a judgment of incompetency, an involuntarily committed patient retains the right to marry, draft a will, sue in his own name, and generally manage his affairs. *fn6" Winters v. Miller, supra, 446 F.2d at 68; Sengstack v. Sengstack, 4 N.Y.2d 502, 176 N.Y.S.2d 337, 151 N.E.2d 887 (1958); Neely v. Hogan, 62 Misc.2d 1056, 310 N.Y.S.2d 63 (1970).

 Competency proceedings concern one's ability to conduct one's personal or business affairs. When it is determined that one is "incompetent" to manage one's affairs or property, or, in the case of a patient, "unable adequately to conduct his personal or business affairs," *fn7" the court appoints a committee to provide for the care of the incompetent and manage his affairs. *fn8" MHL § 78.01. The only similarity between one who has been adjudged incompetent and one who has been involuntarily committed by court order is that both lose their right to vote. See N.Y. Election Law § 5-106(6) (McKinney 1978).

 III. Constitutionality of Section 5-106(6)

 Turning our attention to the constitutionality of section 5-106(6), we are confronted with a statute that infringes upon the exercise of a fundamental right-the right to vote. Consequently, to justify these restrictions, the state must meet the difficult burden of proving that they are narrowly tailored to promote a compelling state interest. Dunn v. Blumstein, 405 U.S. 330, 337, 92 S. Ct. 995, 1000, 31 L. Ed. 2d 274 (1971); Kramer v. Union Free School District No. 15, 395 U.S. 621, 627, 89 S. Ct. 1886, 1889, 23 L. Ed. 2d 583 (1969). This it has not done.

 The state alleges that it has an interest in assuring that electoral choices will be made by intelligent and interested voters. Assuming that this constitutes a compelling state interest, *fn9" the statute is, nevertheless, constitutionally defective because it is not narrowly tailored to effectuate that interest. Because the statute restricts the voting rights of persons involuntarily committed to hospitals by court order, as well as judicially declared incompetents, the statute disenfranchises individuals who might be capable of making rational voting choices.

 When one is declared incompetent, the court has found that person unable to conduct any of his personal or business affairs. Presumably, this includes the ability to cast a rational vote. One who has merely been committed, however, is in quite a different position. *fn10" The principal issue in a commitment proceeding is a medical one: does the person to be committed have a mental illness for which hospitalization is essential and is the person's judgment so impaired that he does not understand his need for hospitalization. A finding that a person lacks understanding about his mental illness and need for hospitalization is not determinative of his ability to vote intelligently. For example, consider the situation of a brilliant political science professor who is so depressed that he is on the brink of suicide. Contrary to the advice of his friends and family, the professor refuses treatment for his depression. If two physicians certify that he is in need of involuntary care and treatment, he can be held on an involuntary basis for up to sixty days. If, after the sixty day period elapses, the professor still refuses treatment, he may continue to be retained if a court determines that his judgment is so impaired that he does not understand the need for such care and treatment. Such a determination by a court would not necessarily bear on the professor's ability to make rational, if not brilliant, voting decisions. Consequently, because the statute does not meet the "exacting standard of precision" required of statutes that restrict the right to vote, Kramer v. Union Free School District No. 15, supra, 395 U.S. at 632, 89 S. Ct. at 1892, it is unconstitutional, but only as applied to persons involuntarily committed to hospitals by court order who have not been adjudged incompetent. *fn11"

 IV. Motion for Preliminary Injunction

 Ironically, the most difficult aspect of this case is not in deciding the substantive constitutional issue, but in deciding whether preliminary injunctive relief should issue in light of the plaintiff's delay in instituting this action. The standard requirements for issuing a preliminary injunction are "possible irreparable injury and either (1) probable success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Buffalo Courier-Express, Inc. v. Buffalo Evening News, Inc., 601 F.2d 48, 54 (2d Cir. 1979) (quoting Caulfield v. Board of Education of the City of New York, 583 F.2d 605, 610 (2d Cir. 1978) (emphasis in original)). See also Triebwasser & Katz v. American Telephone & Telegraph Co., 535 F.2d 1356, 1358 (2d Cir. 1976). As indicated above, the plaintiff has demonstrated probability of success on the merits. The second requirement, irreparable injury, poses more serious problems.

 For purposes of issuing injunctions, deprivations of constitutional rights are generally considered to constitute irreparable injury. International Association of Firefighters v. City of Sylacauga, 436 F. Supp. 482, 492 (N.D.Ala.1977). There is also authority, however, that an unjustified delay in seeking a preliminary injunction militates against the claim of irreparable injury and may be ground for barring injunctive relief. Continental Oil Co. v. Crutcher, 434 F. Supp. 464, 471-72 (D.La.1977); Gianni Cereda Fabrics, Inc. v. Bazaar Fabrics, Inc., 335 F. Supp. 278, 280-81 (S.D.N.Y.1971). An exhibit attached to plaintiff's reply papers indicates that the plaintiff's counsel knew of the statutory exclusion of involuntarily committed patients as early as May, 1980. See Letter from Paul White to Minna Kotlin (May 6, 1980), reprinted in Plaintiff's Reply Memorandum at Exhibit A. The plaintiff, however, did not file this action until just ten days, excluding weekends and holidays, before the close of the voter registration period. The only justification presented for this fifteen month delay is that plaintiff's counsel is " "at a loss to guess at what time' this motion would be more appropriate." Plaintiff's Reply Memorandum at 4 (quoting Herron v. Koch, 523 F. Supp. 167 (S.D.N.Y.1981)). Plaintiff's counsel apparently fails to recognize that the need for preliminary injunctive relief could have been obviated entirely if this action had simply been commenced earlier. It is an unfair imposition on the defendants and on the Court to force an unnecessarily hasty decision on such an important question of constitutional law.

 A similar situation occurred in United States v. State of Texas, 422 F. Supp. 917 (1976). In that case, the plaintiff filed suit just nineteen days before the general election, challenging the constitutionality of the registration procedures for students attending college in the county. A three-judge court dismissed the motion for a preliminary injunction because of the delay in filing the action. Similarly, we feel justified in denying the plaintiff's motion for preliminary injunction entirely because of the delay in commencing this action. Because of the great weight that society places on the right to vote, and in light of our conclusion that the statute is indeed unconstitutional, the Court has nevertheless determined that some equitable relief is warranted, at least to the extent that such relief does not disrupt the orderly conduct of the elections next week. *fn12" See United States v. State of Texas, supra, 422 F. Supp. at 924.

 Because the registration date for the 1981 election has already passed, the only relief that can be granted at this juncture is to permit those patients who are already registered to vote by absentee ballot as provided by Election Law § 8-400. *fn13" To limit the confusion that will inevitably occur, the Court shall require the plaintiff's counsel to personally deliver the appropriate applications to the board of elections. If the board of elections deems the applicant otherwise qualified to vote, it shall issue an absentee ballot to the plaintiff's counsel who, in turn, shall have the responsibility of making certain that the patient receives the ballot and that the board of elections receives the completed ballot within the prescribed time. *fn14"

 The Court does not want this situation to recur next election. Accordingly, the parties are directed to prosecute this case actively and to bring the litigation to a conclusion well before the close of the next voter registration period.


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