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MORRIS v. BOARD OF ESTIMATE

December 1, 1982

BEVERLY MORRIS, JOY CLARKE HOLMES, JOANNE OPLUSTIL, Plaintiffs,
v.
THE BOARD OF ESTIMATE, THE CITY OF NEW YORK, EDWARD I. KOCH, individually and as Mayor of New York, CAROL BELLAMY, individually and as City Council President, HARRISON J. GOLDIN, individually and as Comptroller for the City of New York, HOWARD GOLDEN, ANDREW STEIN, STANLEY SIMON, DONALD MANES, ANTHONY GAETA, each individually and as Borough Presidents of the boroughs of the City of New York, Defendants, and FRANK V. PONTERIO, Intervenor-Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

 NEAHER, District Judge.

 This action raises again the question of the application of the "one person, one vote" principle of the Fourteenth Amendment to an agency of local government. *fn1" Plaintiffs are three registered voters of the Borough of Brooklyn who seek declaratory and injunctive relief to remedy claimed disproportionate representation of their borough on the Board of Estimate of the City of New York. This Court's jurisdiction over the action is not in controversy; indeed, the defendants join plaintiffs in seeking a disposition by summary judgment on the basis of an agreed statement of facts not in dispute, and both sides have served motions accordingly.

 The defendants in the action are the City of New York, the Board of Estimate (hereinafter "Board") and its eight constituent members, namely, the Mayor, the Comptroller, the President of the City Council and the five Borough Presidents. *fn2" These officials are not elected to the Board. Rather, they function as members of the Board by virtue of their prior election to the City governmental offices they hold. Essentially, the controversy between the parties focuses solely upon the allocation of one vote to each of the five borough presidents for purposes of deciding matters over which the Board has jurisdiction. Plaintiffs contend in general that such an equal distribution of voting power is an unconstitutional dilution of the voting rights of Brooklyn residents who substantially outnumber the populations of the four other boroughs, especially the considerably less populous Borough of Richmond (Staten Island). Defendants, however, raise a more fundamental question: whether the Board, as a unique instrumentality of local government, is subject to the "one person, one vote" rule. For the reasons hereinafter discussed, we hold that it is not and thus the "one person, one vote" rule has no relevance to the Board's functions.

 The following relevant facts are not in dispute. The Board is an agency *fn3" of New York City municipal government authorized by Chapter 3 of the New York City Charter. The current City Charter, except as amended in 1975, became effective January 1, 1963 following approval by the City's voters. The Board, however, has had a long and varied history dating back to 1864, when it was originally created for the purpose of estimating the expense of conducting a metropolitan police district for the then separate cities of New York and Brooklyn. Its original members were the Commissioners of the Metropolitan Police (appointed by the Governor) and the Comptrollers of New York and Brooklyn (chosen by the respective Common Councils of those cities). *fn4"

 As already indicated, the Board of Estimate is now comprised of three city-wide officials, i.e., the mayor, the comptroller, the city council president and the five borough presidents. Ch. § 61. *fn5" The city-wide officials are, of course, elected to their respective offices by majority vote of the City's entire voting electorate. Each borough president is elected only by the voters residing in his borough and is allotted one vote on the Board. The city-wide officials on the Board have two votes each for a total of six, which constitutes a majority except when the mayor's two votes are eliminated in the budget formulation and adoption process. Ch. § 62.

 To carry out its responsibilities, the Board is required to meet at least once every other week except during July and August. Ch. § 63. The mayor, or in his absence the president of the city council, presides at all meetings. Id.6 Unless otherwise provided in the Charter or by law, the Board must act by resolution adopted by a majority of the eleven votes authorized to be cast by all its members, except that a three-fourths vote is required to adopt a resolution or amendment thereof which is originally presented at a Board meeting. Moreover, such a resolution or amendment may not be finally passed except at a meeting open to the public. Ch. § 62b, c. By unanimous vote the Board may delegate to any member or committee the power to act or hold hearings on any matter within its jurisdiction, excluding, however, matters included in the formulation and adoption of the expense and capital budgets, city planning and the granting of franchises as set forth in Chapters 6, 8, 9 and 14 of the Charter. Ch. § 65.

 The responsibilities, powers and duties of the Board are set forth in the Charter, the New York City Administrative Code and sundry provisions of State law. Section 67 of the Charter provides that:

 
"The board shall exercise the powers and perform the duties imposed upon it by this charter, and shall:
 
"1. Grant leases of city property and concessions for the use of city property and enter into leases of property to the city for city use.
 
"2. Make recommendations to the mayor or the council in regard to matters of city policy whenever requested or on its own initiative.
 
"3. Hold public hearings on any such matter of city policy or other matters within the scope of its responsibilities whenever requested by the mayor or required to do so by this charter or other provision of law or whenever in its judgment the public interest will be benefited thereby.
 
"4. Have final authority respecting the use, development and improvement of city land.
 
"5. Have authority to approve standards, scopes and final designs ...

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