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November 19, 1986

THE BOARD OF ESTIMATE, THE CITY OF NEW YORK, EDWARD I. KOCH, individually and as Mayor of New York, ANDREW STEIN, individually and as Comptroller for the City of New York, HOWARD GOLDEN, DAVID N. DINKINS, STANLEY SIMON, CLARE SHULMAN, RALPH J. LAMBERTI, each individually and as Borough Presidents of the borouughs of the City of New York, Defendants, and FRANK V. PONTERIO, Intervenor-Defendant, ROBERT A. STRANIERE, individually and as a member of the New York State Assembly, Intervenor-Defendant

The opinion of the court was delivered by: NEAHER


NEAHER, Senior District Judge

 This action challenges the constitutionality of the New York City Board of Estimate ("Board"). Familiarity with previous decisions herein is assumed. See Morris v. Board of Estimate, 551 F. Supp. 652 (E.D.N.Y. 1982), rev'd, 707 F.2d 686 (2d Cir. 1983), on remand, 592 F. Supp. 1462 (E.D.N.Y. 1984).

 In brief summary, plaintiff residents of the Borough of Brooklyn instituted this action contending that, pursuant to sections 61 and 62 of the New York City Charter, the allocation of one vote to each Borough President, as members of the Board, contravened the "one person, one vote" rule of the United States Supreme Court because of the widely disparate populations each Borough President represented. This court, following the remand, applied the test adopted by the Supreme Court in Abate v. Mundt, 403 U.S. 182, 29 L. Ed. 2d 399, 91 S. Ct. 1904 (1971), and found a deviation of 132.9% as between the populations of Staten Island (Borough of Richmond) (352,121) and Brooklyn (2,230,936). Such a large deviation/--more than 10 times that permitted in Abate (11.9%, coupled with a caution)/--strongly signalled that the Board's present voting allocation is unconstitutional. Mindful, however, of the Court of Appeals' instruction that this court "rule on the policies and interests which the Supreme Court has held may justify deviations," Morris v. Board of Estimate, 707 F.2d at 690, the parties were directed to submit a joint stipulation setting forth:

 "(1) those agreed valid policies and interests presently served by the Board; and

 (2) those disputed policies and interests which at least one defendant maintains are valid and are presently served by the Board ...."

 592 F. Supp. at 1477 (emphasis in original). *fn1"


 I. Justification Burden

 The Supreme Court has made it clear that the existence of malapportionment places the burden upon defendants. As the Supreme Court pointed out in Brown v. Thomson, 462 U.S. 835, 842-43, 77 L. Ed. 2d 214, 103 S. Ct. 2690 (1983):

 "A plan with larger disparites ... [than 10%] ... creates a prima facie case of discrimination and ... must be justified by the State."

 Arguably, even were the disproportion explainable, defendants here might ultimately fail their justification task, since the Supreme Court has warned that immoderate inequalities may be intolerable whatever the meritorious objectives. See, e.g., Reynolds v. Sims, 377 U.S. 533, 581, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964) ("But if, even as a result of a clearly rational state policy ..., population is submerged as the controlling consideration in ... apportionment ..., then the right of all ... citizens to cast an effective and adequately weighted vote would be unconstitutionally impaired."); Gaffney v. Cummings, 412 U.S. 735, 744, 37 L. Ed. 2d 298, 93 S. Ct. 2321 (1973) ("[T]he larger variations from substantial equality are too great to be justified by any interest so far suggested.").

 Those warnings together with the huge 132.9% inequality afford a basis for the formidable charge by Citizens Union that the Board's voting plan is facially unconstitutional. See, e.g., Preisler v. Mayor of St. Louis, 303 F. Supp. 1071, 1075 (E.D. Mo. 1969) (The 135% deviation for aldermanic wards was beyond excusing.).

 Still, despite its admonitions, the Supreme Court has never established a figure for per se illegality. Thus, in Mahan v. Howell, 410 U.S. 315, 329, 35 L. Ed. 2d 320, 93 S. Ct. 979 (1973), the Virginia House of Delegates' 16.4% rationalized deviation was sanctioned, a guarded approval being left indefinite by the Supreme Court's comment that:

 "While this percentage may well approach tolerable limits, we do not believe it exceeds them."

 More recently, in Brown v. Thomson, 462 U.S. at 846-48, the majority upheld a plan for the Wyoming House of Representatives, the question presented having excluded an 89% disproportion from consideration. Joining that circumscribed decision, Justice O'Connor nonetheless emphasized that "clearly some outer limit" to acceptable disparities exists. Id. at 849-50 (O'Connor, J., concurring).

 Like the Mahan comment, however, Justice O'Connor's did not specify that "outer limit", obviously because one has not been set. In other words, though consistent with the cautionings against large deviations, these comments indirectly underscore that:

 "[T]he [Supreme] Court has never enunciated specific maximum variations which will invalidate a reapportionment ...."

 Boyer v. Gardner, 540 F. Supp. 624, 629 (D.N.H. 1982).

 Viewed in that light, not reaching the yet unquantified question of facial unconstitutionality/--if possible/--is preferable and actually follows the Supreme Court's example.

 "We are doubtful ... that the deviations [for the Texas House of Representatives] evident here [about 26%] are the kind of 'minor' variations which Reynolds v. Sims indicated might be justified by ... the maintenance of established political subdivisions .... ... But we need not reach that constitutional question, for we are not convinced that the announced policy ... necessitated the range of deviations between legislative districts .... ... [Among other deficiencies in its findings,] the District Court [did not] articulate any satisfactory grounds for rejecting at least two other plans ..., which respected county lines but which produced substantially smaller deviations from the principles of Reynolds v. Sims."

 Kilgarlin v. Hill, 386 U.S. 120, 123-24, 17 L. Ed. 2d 771, 87 S. Ct. 820 (1967). Fortunately, that restrained approach settles the equal protection challenge here. As will be seen, defendants fail their justification burden short of the per se query.

 A. Issues

 As pointed out in Brown v. Thomson, 462 U.S. at 843 (quoting Mahan v. Howell, 410 U.S. at 328) the general justification stage investigation is:

 "whether the legislature's plan 'may reasonably be said to advance [a] rational state policy' and, if so, 'whether the population disparities among the districts that have resulted from the pursuit of this plan exceed constitutional limits.'"

 Dissenting in Brown v. Thomson, 462 U.S. at 852, Justice Brennan elaborated upon that basic inquiry. After a prima facie 10% variance demonstration, the remaining steps are:

 "Second, a court must consider the quality of the reasons advanced by the State to explain the deviations. Acceptable reasons must be 'legitimate considerations incident to the effectuation of a rational state policy,' Reynolds [v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 ,] 579 [(1964)], and must be 'free from any taint of arbitrariness or discrimination,' Roman [v. Sincock, 377 U.S. 695, 12 L. Ed. 2d 620, 84 S. Ct. 1449 ,] 710 [(1964)]. See Mahan v. Howell, 410 U.S. 315, 325-26, 35 L. Ed. 2d 320, 93 S. Ct. 979 (1973). Third, the State must show that 'the state policy urged ... to justify the divergences ... is, indeed, furthered by the plan.' id., at 326. This necessarily requires a showing that any deviations from equality are not significantly greater than is necessary to serve the State's asserted policy; if another plan could serve that policy substantially as well while providing smaller deviations from equality, it can hardly be said that the larger deviations advance the policy. See e.g., Kilgarlin v. Hill, 386 U.S. 120, 123-24, 17 L. Ed. 2d 771, 87 S. Ct. 820 (1967); Mahan, supra, at 319-20, 326 Connor [v. Finch, 431 U.S. 407, 52 L. Ed. 2d 465, 97 S. Ct. 1828 ,] 420-21 [(1977)]. Fourth, even if ... the deviations ... are justified ..., the court must nevertheless consider whether they are small enough to be constitutionally tolerable. ... Mahan, supra, at 326."

 As a minority opinion, Justice Brennan's explication is not controlling. In a larger perspective, however, his detailed guide is consistent with the majority's broad statement and cogently distills the Supreme Court's antecedent body of law.

 Looking to that guide, the first step (the malapportionment stage) has been taken and the fourth (essentially a per se evaluation) will not be for reasons just given. The second and third steps are left, their respective issues being whether defendants' proffered policies and interests are valid concerning the Board, and if so, whether its current voting plan furthers them.

 Regarding the validity issue, the Supreme Court has not precisely defined the characteristics of legitimate goals. See Reynolds v. Sims, 377 U.S. at 579; Roman v. Sincock, 377 U.S. at 710 (both quoted in Brown v. Thomson, 462 U.S. at 852, supra pp. 7-8). See also Swann v. Adams, 385 U.S. 440, 444, 17 L. Ed. 2d 501, 87 S. Ct. 569 (1967) ("satisfactory explanation[s] grounded on acceptable state polic[ies]"); Karcher v. Daggett, 462 U.S. 725 at 740 (objectives "consistent with constitutional norms"). See generally Cohen v. Maloney, 410 F. Supp. 1147, 1151 (D. Del 1976) (considerations "constitutionally acceptable").

 Nor has it announced an all-inclusive list. See Karcher v. Daggett, 462 U.S. 725 at 740 ("Any number of consistently applied legislative policies might justify some variance ...."). See generally Tribe, American Constitutional Law, Ch. 13, § 6 (1978) ("[T]he scope of permissible justifications remains unclear.").

 Nevertheless, the Supreme Court and lower tribunals have countenanced certain considerations germane here. See generally Charo, Designing Mathematical Models to Describe One Person, One-Vote Compliance by Unique Governmental Structures: The Case of the New York City Board of Estimate, 53 Fordham L. Rev. 735, 803 (1985) ("Charo") ("[The] Board ... exhibits many, but not all, of the characteristics of local government that the Supreme Court has singled out for special protection from the stress caused by searching for perfect population equality.").

 The furtherance issue explores (in part) whether another plan would "substantially vindicate" the identified rational objectives "yet approximate population equality more closely." Karcher v. Daggett, 462 U.S. 725 at 741. If the answer is yes, the plan under review is constitutionally deficient. See Guido, Deviations and Justifications: Standards and Remedies in Challenges to Reapportionment Plans, 14 Urb. Law. 57, 68 (1982) ("Even though a rational state policy may justify population variances, the courts will not uphold a plan ... if an alternative ... achieves that policy with a lower level of deviation."). *fn2"

 As relevant to those issues, defendants in the Joint Stipulation of Policies and Interests proffer these considerations in support of maintaining the status quo:

 "1. Absence of any demonstrable injury to the populations of the more heavily populated boroughs as a consequence of requiring equal votes among the boroughs, particularly in light of the presence on the Board of three members - the Mayor, the Comptroller and the City Council President - who are elected by all the voters in all the boroughs, who each have two votes, and who in the aggregate outvote the five borough presidents.

 2. Uniqueness of the Board as a form of local government because of its composition and voting allocation.

 3. Meaningful representation of the citizens of the lesser populated boroughs, especially Staten Island, in Board affairs. *fn3"

 4. Preservation of the boroughs as legitimate representational entities in local government.

 5. Use of natural and historical borough boundaries to define representational entities in local government.

 6. Historical treatment of the boroughs as separate governmental entities.

 7. Necessity of retaining borough representation on the Board in light of abolition of such representation on the City Council.

 8. Effectiveness of a Board comprised of only eight members.

 9. The long-standing dual role of borough representatives as both Borough Presidents and the member of the Board.

 10. Coordination of City and borough governmental authority and responsibility.

 11. Ability to balance differing interests and needs, and to accommodate development and long-term planning requirements of both the boroughs and the City as a whole.

 12. Flexibility to meet changing societal needs, particularly in a large municipality whose local government is complex.

 13. Correlation between the functions of the Board and the impact of those functions upon the boroughs, particularly in regard to the formulation of the capital budget, in order to assure that different parts of the City get their fair share of service contracts and capital budget allocation which might ...

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