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ABATE v. ROCKLAND COUNTY LEGISLATURE

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


May 16, 1997

SAMUEL J. ABATE, WILLIAM DARDEN, ROBERT FRANKL, EDWARD GRAYBOW, JEAN CLAUDE MEHU and WILFREDO OLVERIO, Plaintiffs,
v.
THE ROCKLAND COUNTY LEGISLATURE, JOHN T. GRANT as County Executive, BRUCE LEVINE as Chairman of the Rockland County Legislature, ROCKLAND COUNTY, SHIRLEY HUESTED and FRANCES MCCORMACK as Commissioners of the Rockland County Board of Elections, EDWARD GORMAN as Rockland County Clerk, Defendants.

The opinion of the court was delivered by: RAKOFF

OPINION AND ORDER

 JED S. RAKOFF, U.S.D.J.

 In a case of local legislative apportionment, as elsewhere, an experiment must eventually be judged by its results; and if federal courts need to be receptive to "innovation, experiment, and development among units of local government," they have a correlative duty to make sure that the results do not exceed constitutional limits. *fn1" In 1971, the Supreme Court, despite misgivings, gave tentative approval to Rockland County's newly-promulgated experiment in apportionment, concluding that special local factors justified the plan's 11.9% deviation from "one-person/one-vote" equality. Abate v. Mundt, 403 U.S. 182, 29 L. Ed. 2d 399, 91 S. Ct. 1904 (1971). But at the same time the Court cautioned that "nothing we say today should be taken to imply that even these factors could justify substantially greater deviations from population equality." Id. at 187.

 Assessing the results a quarter century later, this Court finds that the unusual historical circumstances that gave rise to the Rockland County experiment have substantially dissipated, while the deviation from equality inherent in the Rockland County plan has increased to 19.8% and gives every indication of increasing further. As a result, the plan no longer passes constitutional muster and must give way to prompt reapportionment.

 Legal And Factual Background

 The findings of fact and conclusions of law that have led the Court to these determinations are set forth in the following Opinion. They reflect not only the Court's review of the parties' documentary submissions *fn2" but also its resolution of the testimonial conflicts among the prominent Rockland County officials called as witnesses at the recent bench trial of this case. *fn3" At the outset, however, it is well to review certain guiding principles that none of the parties disputes.

 On the one hand, "more flexibility [is] constitutionally permissible with respect to state [or local] legislative reapportionment than in congressional redistricting." Mahan v. Howell, 410 U.S. 315, 321, 35 L. Ed. 2d 320, 93 S. Ct. 979 (1973). On the other hand, "a state's policy urged in justification of disparity in district population, however rational, cannot constitutionally be permitted to emasculate the goal of substantial equality." Id. at 326. Accommodation of these objectives is achieved through a presumption sometimes referred to as the "ten-percent rule." Where a state or local apportionment plan deviates from equality by less than 10%, it is presumptively constitutional, and a challenger has the burden of proving that even such "minor deviation" is the result of discriminatory state action. Conversely, a plan with a deviation of more than 10% "creates a prima facie case of discrimination and therefore must be justified by the state." Brown v. Thomson, 462 U.S. 835, 843, 77 L. Ed. 2d 214, 103 S. Ct. 2690 (1983). Moreover, "because voting rights require highly sensitive safeguards," state interests offered to justify deviations from equality must be "carefully scrutinized" by the courts. Abate, 403 U.S. at 185. Even substantial state interests may not justify material deviations if, for example, the interests are not meaningfully furthered by the apportionment plan at issue, see Mahan, 410 U.S. at 326, or if, in appropriate circumstances, another plan could effectuate the same state interests while minimizing the degree of deviation from equality, see Kilgarlin v. Hill, 386 U.S. 120, 123-24, 17 L. Ed. 2d 771, 87 S. Ct. 820 (1967).

 While agreed on these principles, the parties disagree at the threshold as to what mathematical formula properly measures the percentage of deviation from equality in the particular circumstances of this case. To understand, and resolve, this initial dispute, it is first necessary to outline the history of the Rockland County apportionment plan and its peculiar mathematics.

 Rockland County, situated roughly 20 to 30 miles north of Manhattan, is the smallest geographically of New York State's 62 counties outside the boroughs of New York City. Tr. 40. *fn4" Largely rural until the completion of the Tappan Zee Bridge across the Hudson River in the late 1950's, the County is now increasingly suburban. Tr. 39-40, 177. It is divided geographically into five areas known as Towns: Clarkstown, Haverstraw, Orangetown, Ramapo, and Stony Point. It is also divided into school districts, the borders of which do not necessarily correspond to town boundaries, and also includes numerous villages and other municipal units, several of which cross town boundaries. Tr. 38-41, 74.

 For at least a century prior to 1970, Rockland County was governed by a Board of Supervisors, consisting of the elected supervisors of each of the County's five constituent towns. Abate, 403 U.S. at 183. Since, however, the populations of the respective towns differed greatly in size, this arrangement was no longer tenable (at least in its pristine form) once the Supreme Court, in its 1968 decision in Avery, supra, held that the one person/one vote doctrine extended to local units of state government. Accordingly, in 1969, the Board of Supervisors was disbanded (partly in response to local apportionment litigation *fn5" ) and replaced by a directly-elected Rockland County Legislature. See Rockland County Board of Supervisors, Resolution No. 311 - Adoption of Plan Providing for Reapportionment for Rockland County (June 24, 1969)(the "Plan"). The avowed purpose of the Plan was "maintaining the traditional and historic relationship between town and County governments consistent with the constitutional requirement for equal representation," by (a) making the County legislative districts conterminous with "the boundaries of the existing towns" and (b) permitting elected town officials, and specifically town supervisors, to "also serve as members of the County Legislature." Id. More precisely, as the Supreme Court found, the purpose was "to encourage town supervisors to serve on the county board," Abate, 403 U.S. at 187, and thus preserve the interlocking nature of town and county governments.

 To accomplish this without patent malapportionment, the Plan provided that the town-district with the smallest population (Stony Point) would elect one representative to the County Legislature and that each of the other four town-districts would elect, on a town-wide basis, the number of representatives equal to the quotient -- rounded to the nearest integer -- of that town's population divided by the population of the smallest town. Plan at ยง 5. The Plan further provided for these calculations to be recomputed after each official federal census. Id.

 Even as initially applied, the "rounding-off" aspect of the Plan effectively diluted the voting strength of the voters in some towns as compared with the voters in other towns. For example, Orangetown, with 4.3 times the population of Stony Point, was accorded four representatives in the first Rockland County Legislature, while Clarkstown, with 4.8 times the population of Stony Point, was assigned five representatives. See Abate, 403 U.S. at 184 n.1. Compared with the voters of Stony Point, therefore, the voters of Orangetown were underrepresented and the voters of Clarkstown were overrepresented. Measuring these effects by the "traditional" formula (described below), the Supreme Court calculated the maximum "deviation" from equality as 11.9%.

 Inherent in the "rounding-off" aspect of the Rockland County Plan, moreover, was the potential for still larger deviations, depending on the fortuity of the ratios between the populations of the various towns. If, hypothetically, the smallest town had a population of 10,000, a second town had a population of 14,999, and a third town had a population of 15,001, the Rockland County Plan would accord one representative to the second town and two representatives to the third town -- with the result that the voters of the second town would elect half as many county legislators as the nearly identical number of voters of the third town while simultaneously having one-third less voting power than the voters in the first town.

 The County now concedes that the "mathematical realities" of the Rockland County Plan dictate "relatively large deviations." Defendants' Memorandum of Law In Opposition To Plaintiffs' Motion For Summary Judgment, at 17-18. Still, as of 1971, the Supreme Court, mindful of the new and experimental nature of the Rockland County Plan, did not view such potential (albeit inherent) problems as ripe for adjudication. As the Supreme Court stated: "we express no opinion on the contingency that, in future years, the Rockland County plan may produce substantially greater deviations than presently exist. Such questions can be answered if and when they arise." Abate, 403 U.S. at 186 n.3.

 The peculiar mathematics of the Rockland County Plan also carried a significant potential for forcing the County to greatly expand the size of the County Legislature or face still further deviations from equality. This could happen if the rest of the County grew at a faster rate than its smallest town, *fn6" and it could also happen if the unpredictable deviations created by "rounding off" became so unacceptably large that the Plan could be constitutionally saved only by doubling or tripling the size of the legislature so as to reflect more precisely the actual ratios between the towns. *fn7"

 Thus another difficulty with the Rockland County Plan was that it created an inherent tension between keeping the County Legislature at a manageable size and keeping deviations from voter equality within acceptable limits. Again, the County now concedes this point, stating that "when the smallest possible legislature is based upon a multi-member district plan in which each town has at least one legislator, the total deviation is inevitably going to be relatively large." Def. Mem., op. cit., at 17. Once again, however, while this difficulty was to some extent noticeable from the outset of the Plan, in that the newly-created County Legislature consisted of 18 members compared with the five members of the previously-existing Board of Supervisors, the Supreme Court chose not to address this difficulty in its initial review of the plan in Abate, presumably because the problem had not yet ripened to constitutional significance. But the problem persisted -- becoming far more obvious, and serious, in subsequent years.

 First, in 1981, as a result of the population changes in the County reflected in the 1980 federal census, the Rockland County Board of Elections certified that, if no changes were made in the apportionment of the County Legislature, the deviation from equality (which the Board at all times calculated under the "traditional" formula, infra) would increase from 11.9% to 26.4%. See English v. Lefever, 110 Misc. 2d 220, 442 N.Y.S.2d 385 (Sup. Ct. Rockland Cty., 1981). Only by increasing the size of the County Legislature to 21 was the County able to reduce the deviation to a figure of 17.8%, which a reviewing state court found barely acceptable. *fn8"

 Subsequently, as a result of the 1990 census, the County Legislature was advised that even to keep the degree of deviation at or slightly below the 17.8% figure approved by the state court in the English case, the size of the Legislature would have to be increased to 23 members, and that in order to reduce the degree of deviation below the 10% figure used for measuring "prima facie" unconstitutionality, the size of the Legislature would have to be increased to no less than 42 members. See Affidavit of Edwin L. Whitman, Esq., sworn to September 12, 1996 ("Whitman Aff.") at 6-9 and Ex. D. The Legislature chose, instead, not to reapportion, concluding in effect that the County interests justified an even greater deviation from equality than previously permitted. Rockland County Res. No. 156 of 1993 Declaring This Legislature to be Appropriately Apportioned, Apr. 7, 1993 (Whitman Aff., Ex. E). *fn9" This lawsuit followed. *fn10"

 Extent of Malapportionment

 Against the preceding background, the Court must first determine the measure and extent of the Rockland County Legislature's current deviation from voter equality. Plaintiffs urge that this calculation be made in accordance with what all parties correctly refer to as the "traditional" formula, see Joint Pretrial Order at PP 6-7. The traditional formula calculates the extent of deviation by first dividing the total population of the governed community (here, Rockland County, with a 1990 census population of 265,475) by the total number of legislators (here, 21), thereby yielding an ideal population number (here, 12,642) that should be represented by each legislator if there were complete voter equality. This ideal number is then compared with the population actually represented by each member of the County Legislature (here, the population of the particular town-district the member represents), with the percentage of difference indicating the percentage of deviation from equality.

 Application of this formula to the current Rockland County Legislature yields the following figures: *fn11" TOWN 1990 CENSUS NO. OF % DEVIATION POPULATION REPS FROM EQUALITY Stony Point 12,814 1 -1.36 Haverstraw 32,712 3 .75 Orangetown 46,742 4 7.56 Clarkstown 79,346 6 -4.61 Ramapo 93,861 7 -6.07

19970516

© 1992-2004 VersusLaw Inc.



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