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In the Matter of Arthur J. Walsh, et al v. Anita S. Katz

June 2, 2011


The opinion of the court was delivered by: Jones, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

At issue, in this proceeding pursuant to Election Law § 16-102, is the constitutionality of the residency requirement for the elected position of town justice/town board member, Fishers Island, Town of Southold, Suffolk County (L 1860, ch 113, § 2, as amended by L 1898, ch 373, § 1, as further amended by L 1977, ch 276, § 1). We hold that the residency requirement does not violate the equal protection clause. In so holding, we conclude that the requirement is subject to a rational basis test, and that a rational basis exists to justify the requirement.


Fishers Island is situated in the Town of Southold and located approximately 11 miles off the North Fork of the eastern coast of Long Island. While the island is only about two miles from the Connecticut coast, and has no direct ferry service to the mainland portion of the Town, it has historically been part of Southold in Suffolk County.

The island is Election District 1 in the Town of Southold. According to data compiled from the 2000 United States Census, a total of 20,599 individuals resided in Southold. Of this number, 289 individuals were residents of Fishers Island, which represents approximately 1.5% of Southold's population.

In 1860, the State Legislature enacted a law providing for a fifth justice of the peace for the Town of Southold (see L 1860, ch 113, § 2). Pursuant to the law, the fifth justice of the peace was required to reside either upon Fishers Island or upon one of the islands adjacent thereto (id.). At the time the law was enacted, justices of the peace were also members of the Southold Town Board. The law was amended in 1898 to require the fifth justice of the peace to reside on Fishers Island itself (see L 1898, ch 373, § 1).

In 1976, pursuant to L 1976, ch 739, § 60-a, the Legislature eliminated the dual role and town justices no longer served on town boards. This legislation had no effect on the requirement that the fifth justice reside on Fishers Island.

In 1977, the Legislature reinstituted the dual town justice/town board member position for Fishers Island and continued the long-standing residency requirement (see L 1977, ch 276, § 1), as follows:

"There shall be elected at the meeting of the Town of Southold in the County of Suffolk, to be held in the spring of [1898], and every four years thereafter, one town justice who shall reside upon Fisher's island in said town. The justice so elected shall enter upon the duties of his office at the expiration of the term of office of his predecessor, and shall hold his office for four years. Notwithstanding the provisions of any other law, such town justice residing upon Fisher's island shall, in addition to his duties as town justice, serve as a member of the Southold town board" (id. [emphasis added]).*fn1 The Bill Jacket accompanying Chapter 276 of the Laws of 1977 sets forth the Legislature's rationale in support of this enactment. It states, in pertinent part:

"The effect of the 1976 enactment is to remove the Fishers Island town justice from the Town Board and thus leave the people of Fishers Island without any representation. Moreover, there is no direct transportation between Fishers Island and the mainland of the Town of Southold and therefore, it is virtually impossible for the Fishers Island residents to attend Town Board meetings. It has been the custom for the resident town justice of Fishers Island to keep the residents of the Island apprised of Town matters as well as to present their views on various issues which may concern them. In effect, the Fishers Island town justice, as a member of the Town Board, has acted as the link between Town government and the people of Fishers Island. It has been argued that the effect of the 1976 amendment to the Town Law is to deprive the residents of Fishers Island from meaningful participation in Town government" (Sponsor's Mem, Bill Jacket, L 1977, ch 276; see also I. Evanick Ltr [dated 6-2-77], id. [stating, "By operation of law the residents of Fishers Island, who are in a unique geographical position, will suffer the loss of meaningful representation. This legislation was intended to rectify this situation."]; M. Cuomo Mem [dated 6-6-77], id. [Mem noted that application of the 1976 legislation to Southold would be "unfeasible" given the "unusual circumstances" regarding Fishers Island's access to Southold and the island's "limited population base," and stated that "[r]epresentation on the town board is the primary consideration."]).

Since 1977, there have been no further amendments to the Fishers Island residency requirement for the elected position of town justice/town board member, which position is elected in a town-wide election.


In July 2009, respondent Daniel C. Ross, a resident of Southold but not a resident of Fishers Island, filed with the Suffolk County Board of Elections (BOE) a petition designating himself a candidate in the September 2009 primary election for the nomination of the Democratic Party as its candidate for the Fishers Island town justice/town board member seat. Petitioners Arthur J. Walsh and Nina J. Schmid -- residents of Fishers Island -- filed objections to the designating petition, alleging that it was invalid because Ross did not meet the residency requirement. Respondents Anita S. Katz and Cathy L. Richter Geier, as Commissioners of the BOE, denied the objections and upheld the designating petition.

Petitioners commenced this Election Law proceeding seeking to prohibit the BOE from placing Ross's name on the ballot for the September 2009 primary election or the November 2009 general election based on Ross's failure to meet the residency requirement. Ross counterclaimed and, in effect, cross-petitioned to validate the designating petition, challenging, among other things, the constitutionality of the ...

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