Badillo v. Katz

73 Misc. 2d 836, 343 N.Y.S.2d 451, 1973 N.Y. Misc. LEXIS 2023
New York Supreme Court·Decided April 16, 1973·Published·Cited by 1 cases

Opinion

Wallace B. Cotton, J.

In this consolidated proceeding plaintiffs John Calandra et al. and Herman Badillo et al., seek among other things, a declaration that Local Law No. 4 (Local Laws, "1973, No. 4 of City of New York) title ZB “ Couneilmanic Districts ’ ’ which established a plan for 33 new couneilmanic districts in the City of New York to be voted upon in the primary election to be held on June 4, 1973 and the general election in November of this year is invalid and in addition violative of the plaintiffs’ rights to equal protection as guaranteed under section 11 of article I of the New York State Constitution and the Fourteenth Amendment of the United States Constitution.

The plaintiffs further request that the court enjoin the defendant Board of Elections from using the districts described in title ZB in its preparation for the forthcoming elections and that the court promulgate a fair and equitable plan of describing the 33 districts of convenient and contiguous territory in as compact form as practicable for use in the ensuing election.

[838]*838From the oral evidence adduced at the trial, the filed papers and exhibits, it appears that the New York State Legislature enacted a law requiring the New York City Council to establish a plan for 33 new councilmanic districts by February 1, 1973 (L. 1971, ch. 1206).

Pertinent to this proceeding is that the language of the aforesaid law among other things, provided: ‘ ‘ Such local law shall describe the boundaries of such districts in such manner that such districts shall be created on the basis of the last preceding federal census, as nearly equal in number of inhabitants or in number of citizens, as is practicable, of convenient and contiguous territory and in as compact a form as practicable ” (L. 1971, ch. 1206, § 1, amdg. New York City Charter, § 22, subd. f).

Thereafter in or about May or June of 1972, a special committee of the City Council commmenced work on the reapportionment plan.

The evidence is clear that the intent of the Council’s committee was at all times to conform with the ‘ one man, one vote ’ ’ principle of apportionment as mandated by the quoted statute and our highest court in Baker v. Carr (369 U. S. 186); Reynolds v. Sims (377 U. S. 533); Dusch v. Davis (387 U. S. 112). The results of the apportionment reflect this to an extraordinarily precise degree as does the report of the committee dated December 22, 1972.

The apportionment of councilmanic' lines in conformance with local, State and Federal requirements in the City of New York is one of tremendous magnitude for not only does the city have one of the largest populations in the world, but its topography is totally irregular consisting primarily of islands and a peninsula.

The 1970 census reports reflect that the city had a total population of 7,895,563 citizens scattered over the five boroughs, as follows: Bronx, 1,471,701, Brooklyn, 2,602,012, Manhattan, 1,539,-233, Queens, 1,987,174, Richmond, 295,443. Since 33 districts were mandated, the total population was divided by 33 to establish a population mean ” of 239,259 for each councilmanic district.

From the population figures set forth above, it is apparent that the Borough of Richmond hack a population excess of 56,000 above the mean, thus precluding the possibility of placing it in one councilmanic district. Thus, the Borough of Richmond, on its face, necessitated apportionment in such a manner that it be linked with such other borough or boroughs of the city not only to absorb the excess of population so as to come within the ambit of the “ one man, one vote ’’ mandate, but to conform to the addi[839]*839tional statutory and constitutional requirement that the districts be contiguous, convenient and as compact as practicable. Fur-, ther anaylsis of the census figures revealed that by reason of population shifts certain areas of The Bronx, Queens and Man-, hattan had been left underrepresented, in violation of the “ one man, one vote” principle. The evidence demonstrates that substantial efforts were made to rectify the underrepresented areas to bring them within the ambit of the constitutional mandate of one man, one vote ”, with the net result that at the conclusion of the reappórtionment there remained small pieces of Manhattan, Bronx and Queens which were joined together and ultimately became the Eighth Councilmanic District, as well as in Richmond, Manhattan and Brooklyn, which were joined together to create the Second and Thirty-third Districts.

The bill was passed by the Council on December 22,1972. On January 16, 1973, the Mayor vetoed the bill. On January 18, 1973, the Council overrode the veto and Local Law No. 4 became effective.

From the evidence, it is clear that the over-all result of the apportionment of the 33 councilmanic districts as they relate to the population and equal representation is computer perfect, for the maximum variance between any of the districts is less than l/10th of 1%. Plaintiffs argue, however, that the reapportionment fails to satisfy the additional requirements of contiguity, convenience and compactness as practicable, as required by the appropriate statutes and case law.

In fairness to the City Council, it must be noted that the City of New York is substantially heterogeneous rather than homogeneous. Thus it would be an impossible task to find 239,000 people (the requirement of each district) with common ethnic and economic backgrounds that resided in an area that would be contiguous, convenient and compact,, even if such was desirable. A walk down a main street of any of our boroughs is sufficient to demonstrate this.

While evidence was introduced to show the manner in which community planning districts are drawn with an emphasis on compactness with placement of local services such as fire, police, and sanitation, within a particular district, it was also revealed that equality of population of such districts was not a substantial factor, and that the maximum population each district had was 125,000. Quite obviously, this is far less than required in the apportionment of the councilmanic lines and not susceptible to conformance with the rule of “ one man, one vote ”.

At the trial plaintiffs offered proof as to their contentions that Councilmanic Districts Nos. 2, 8 and 33 did not satisfy the [840]*840requirements ‘1 of convenient and contiguous territory and in as compact form as practicable ” as required by the statute.

The Court of Appeals has stated in interpreting essentially similar language as is in issue herein in the case of Matter of Schneider v. Rockefeller (31 N Y 2d 420, 429) that “ Contiguous territory ’ we have said, means territory touching, adjoining and connected, as distinguished from territory separated by other territory ' (Matter of Sherill v. O' Brien 188 N. Y. 185, 207). The term ‘ compact \ on the other hand, has no precise meaning within the context of the constitutional mandate. Moreover, the Constitution does not provide unqualifiedly for compactness. (Matter of Sherrill v. O’Brien, supra.)

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Badillo v. Katz, 73 Misc. 2d 836, 343 N.Y.S.2d 451, 1973 N.Y. Misc. LEXIS 2023 (N.Y. Super. Ct. 1973).

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