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REED v. TOWN OF BABYLON

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK


January 18, 1996

DR. EUGENE T. REED, SR., DR. HAROLD KOPCHYNSKI, DR. WARREN ST. JAMES, ISABELL KENNEDY, REGINALD HAREWOOD, ROBERT BEAN, LILLIAN SCOTT, BERNICE G. BURNETT, GWENDOLYN BROWN, on behalf of themselves and all others similarly situated, Plaintiffs, against TOWN OF BABYLON, RICHARD H. SCHAFFER JR., ANTHONY A. TAFURI, FRANCINE V. BROWN, PATRICK HAUGEN and ROBERT E. KAUFOLD, Defendants.

The opinion of the court was delivered by: SEYBERT

OPINION AND ORDER

 SEYBERT, District Judge:

 Plaintiffs, African-American citizens of the Town of Babylon in Suffolk County, Long Island, New York, challenge the town's at-large election system for its Town Board, charging that the system violates Section 2 of the Voting Rights Act of 1965, as amended (the "Act"), 42 U.S.C. Section 1973, and the First, Thirteenth, Fourteenth and Fifteenth Amendments of the United States Constitution. Plaintiffs allege that the at-large method of electing the Town Board dilutes the voting power of the Town of Babylon's African-American citizens. Plaintiffs seek to have the present method of election declared invalid and to have it replaced by single-member districts.

 Having considered the testimony and exhibits presented during the course of a six-and one-half day non-jury trial, discovery materials and the parties' written submissions following trial, the Court concludes that plaintiffs have failed to demonstrate either a violation of the Act or of their constitutional rights.

 FINDINGS OF FACT *fn1"

 A. The Parties

 

1. Plaintiffs

 United States District Judge Korman certified the plaintiff class on April 27, 1989 to represent African-American and Hispanic citizens of the Town of Babylon. At no time during the trial, however, was any evidence offered that plaintiffs, all of whom are African-American, represented the interests of the Town's Hispanic population. Consolidating minority groups is permissible where the statistical evidence is that the minority groups vote cohesively for the same candidates. See League of United Latin American Citizens v. Clements, 999 F.2d 831, 863-64 (5th Cir. 1993) (en banc), cert. denied, 127 L. Ed. 2d 74, 114 S. Ct. 878 (1994). In the case at bar, plaintiffs did not offer even evidence that Hispanic voting strength was being diluted by the challenged method of election, much less attempt to show cohesive voting across ethnic groups. In fact, in examining the voting preferences of the Town of Babylon's African-American citizens, plaintiffs combined the votes of Hispanic voters with those of other non-African-American citizens. Plaintiffs' counsel, Margaret Ford, essentially conceded that the lawsuit no longer sought to protect the voting rights of the Town's Hispanic community, noting beginning of the trial that "we have not talked about the rights of Latinos in this particular lawsuit. . ." (Tr. at 144.)

 A district court may decertify a class pursuant to Fed. R. Civ. P. 23(c)(1). This rule provides that "as soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. Any decision under this subdivision may be conditional, and may be altered or amended before the decision on the merits." Fed. R. Civ. P. 23(c)(i); see Prudential Securities Inc. Limited Partnerships Litigation, 158 F.R.D. 301, 304 (S.D.N.Y. 1994); Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir.) ("The district judge must define, redefine, subclass, and decertify as appropriate in response to the progression of the case from assertion to facts."), cert. denied, 464 U.S. 1009, 78 L. Ed. 2d 710, 104 S. Ct. 527 (1983); In re Harcourt Brace Jovanovich, Inc. Securities Litigation, 838 F. Supp. 109, 115 (S.D.N.Y. 1993)("The court may modify the class, establish subclasses, or decertify as appropriate in response to factual development." (citations omitted)).

 The issue of whether a class should be decertified may be raised by the Court acting sua sponte. In re Prudential Securities, 158 F.R.D. at 304; Gerstle v. Continental Airlines, Inc., 466 F.2d 1374, 1377 (10th Cir. 1972). Given the complete lack of evidence of Hispanic vote dilution, the Court on its own motion decertifies the class in so far as it purports to be made up of Hispanic citizens. Plaintiffs' claims with respect to Hispanic citizens are dismissed in their entirety. The class certification remains effective for African-American citizens of the Town of Babylon.

 

2. Defendants

 Defendants are the Town of Babylon and the current members of the Town Board, sued in their official capacities as Board members.

 B. The Current Method of Election

 The Babylon Town Board consists of four board members and the Town Supervisor, who is a full voting member of the Town Board. N.Y. Town Law § 60 (McKinney 1987). The four board members are elected at large to four-year, staggered terms (two in each election cycle). N.Y. Town Law § 24 (McKinney 1987 and Supp. 1995). The Supervisor is elected at large to a two-year term. N.Y. Town Law § 24 (McKinney 1987 and Supp. 1995). In addition to being a voting member of the Council, the Supervisor is also a full-time employee of the Town and its chief executive and administrative officer. N.Y. Town Law §§ 52, 60 (McKinney 1987). Under New York law, neither the number of Board seats nor the method of election may be changed without submitting the issue to the voters in a referendum. N.Y. Town Law § 81 (McKinney 1987). Moreover, New York law specifically provides only for the number of board seats to be changed from four to either to six or two. N.Y. Town Law § 81 (McKinney 1987).

 Town Board elections are partisan. A candidate may appear on the ballot under more than one party label. For example, the Republican nominee is often also the nominee of the Right to Life Party. There is no majority vote requirement. The top two finishers among the Town Board candidates are elected. Single shot, or bullet, voting, referring to a voting practice in which a voter is allowed to cast fewer than all of his or her votes, thus enhancing the significance of each vote she or he casts, is permitted. *fn2"

 As of the date of trial, three members of the Town Board, including the Supervisor, were Democrats and two were Republicans. None is African-American. In the past twenty years, only one African-American, Myrna Taylor in 1993, has run for the Board. In November 1995, both the Democratic Supervisor, Richard Schaffer, and the two Democratic members of the Town Board were reelected.

 C. Population and Geographical Information The 1990 U.S. Census of Population reports the following population information for the Town of Babylon: Population Voting Age Population Total 202,889 *fn3" 154,988 *fn4" White 172,605 (85.07%) 134,306 (86.66%) *fn5" African- 30,284 (14.93%) 20,681 (13.34%) *fn6" American

19960118

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