Appeal from a judgment of the United States District Court for the Eastern District of New York (Neaher, Judge), holding the one person, one vote principle of the Equal Protection Clause of the Fourteenth Amendment inapplicable to the New York City Board of Estimate. Reversed and remanded.
Before KAUFMAN and NEWMAN, Circuit Judges, and LASKER, District Judge.*fn*
This appeal presents the question whether the equal protection principle of one person, one vote is applicable to the election of members of the New York City Board of Estimate.
The Board of Estimate ("the Board") is one of the governing bodies of New York City. It exercises a wide range of powers, including the power to negotiate and enter all contracts on behalf of the city; to approve or modify all zoning decisions for the city; to set tax abatements; and to determine the use and development of all propery owned by the city. In addition, in conjunction with the City Council, the Board recommends and approves the city's expense and capital budgets.*fn1
The Board has eight members. Three of the members, the Mayor, the Comptroller and the President of the City Council, are elected by the votes of the entire city electorate. The other members are the Borough Presidents of New York City's five boroughs: The Bronx, Brooklyn, Manhattan, Queens and Richmond (Staten Island).The Borough Presidents are elected only by the voters of their respective boroughs.
The boroughs of New York vary greatly in population. According to the 1980 census, Brooklyn, the largest, had a population of approximately 2.2 million, while the population of Staten Island, the smallest, was slightly over 350,000. Appellants claim that the system by which voters of geographical units of substantially different populations send the same number of representatives to the Board violates the Equal Protection Clause of the Fourteenth Amendment. Appellants, residents and voters of Brooklyn, contend that as a result of the present voting scheme, voters in Staten Island have six times the voting strength of Brooklyn voters.
In the district court, the principal parties cross-moved for summary judgment on agreed facts. Summary judgment was opposed by Frank Ponterio, a residnet and voter of Staten Island, who had been permitted to intervene. The court granted appellees' motion for summary judgment, concluding that the Board is neither an elective nor a legislative body, and that, accordingly, under Avery v. Midland County, 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114 (1968), and Sailors v. Board of Education, 387 U.S. 105, 18 L. Ed. 2d 650, 87 S. Ct. 1549 (1967), the constitutional principle of one person, one vote was inapplicable.
The district court determined that the Board is not an elective body because no independent election is held to select the Board's members; rather, the Board "consists of a group of public officials who are already constitutionally elected to their respective offices as required by law." In addition, the district court, in reliance on Sailors v. Board of Education, supra, determined that the Board's primarily non-legislative character removed it from the reach of the Equal Protection Clause.
Appellants challenge the district court's conclusion that the Board is not an elected body, arguing that because the members of the Board become Board members as a matter of law upon election, they are in fact and law "elected" to their respective positions. They further contend that the proper question is not whether the Board executes legislative tasks, but whether it exercises general governmental functions. Finally, appellants argue that the voting disparities created by the present electoral scheme are far greater than permissible under the Equal Protection Clause and such cases as Abate v. Mundt, 403 U.S. 182, 29 L. Ed. 2d 399, 91 S. Ct. 1904 (1971) and Mahan v. Howell, 410 U.S. 315, 35 L. Ed. 2d 320, 93 S. Ct. 979 (1973).
Appellees contend that the Board members sit on the Board "ex officio " and accordingly are not elected to the Board itself. They argue further that this Court should defer to the decision of the New York Court of Appeals in Bergerman v. Lindsay, 25 N.Y.2d 405, 306 N.Y.S.2d 898, 255 N.E.2d 142 (1969), appeal dismissed and cert. denied, 398 U.S. 955, 26 L. Ed. 2d 540, 90 S. Ct. 2173 (1970), which upheld the constitutionality of the Board's electoral scheme as it was at the time. Finally, appellees urge that the unique nature of the Board presents the type of "special circumstances" that the Supreme Court has indicated may justify "departures from strict equality" of the one person, one vote rule under Abate v. Mundt, 403 U.S. 182, 29 L. Ed. 2d 399, 91 S. Ct. 1904 (1971).
Intervenor-Appellee Ponterio defends the district court's grant of summary judgment and further contends that if the one person, one vote rule applies to the Board, substantial questions of fact are presented as to whether the present scheme in fact results in disproportionate voting power as between voters of different boroughs, and, if so, to what extent.
In Hadley v. Junior College District, 397 U.S. 50, 56, 25 L. Ed. 2d 45, 90 S. Ct. 791 (1970), the Supreme Court held "that as a general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election . . ." Accordingly, our primary task is to ...