Morris v. Board of Estimate

707 F.2d 686, 1983 U.S. App. LEXIS 27940
CourtCourt of Appeals for the Second Circuit
DecidedMay 16, 1983
DocketNo. 1101, Docket 83-7007
StatusPublished
Cited by8 cases

This text of 707 F.2d 686 (Morris v. Board of Estimate) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morris v. Board of Estimate, 707 F.2d 686, 1983 U.S. App. LEXIS 27940 (2d Cir. 1983).

Opinion

LASKER, District Judge.

This appeal presents the question whether the equal protection principle of one person, one vote is applicable to the election of members of the New York City Board of Estimate.

The Board of Estimate (“the Board”) is one of the governing bodies of New York City. It exercises a wide range of powers, including the power to negotiate and enter all contracts on behalf of the city; to approve or modify all zoning decisions for the city; to set tax abatements; and to determine the use and development of all property owned by the city. In addition, in conjunction with the City Council, the Board [688]*688recommends and approves the city’s expense and capital budgets.1

The Board has eight members. Three of the members, the Mayor, the Comptroller and the President of the City Council, are elected by the votes of the entire city electorate. The other members are the Borough Presidents of New York City’s five boroughs: the Bronx, Brooklyn, Manhattan, Queens and Richmond (Staten Island). The Borough Presidents are elected only by the voters of their respective boroughs.

The boroughs of New York vary greatly in population. According to the 1980 census, Brooklyn, the largest, had a population of approximately 2.2 million, while the population of Staten Island, the smallest, was slightly over 350,000. Appellants claim that the system by which voters of geographical units of substantially different populations send the same number of representatives to the Board violates the Equal Protection Clause of the Fourteenth Amendment. Appellants, residents and voters of Brooklyn, contend that as a result of the present voting scheme, voters in Staten Island have six times the voting strength of Brooklyn voters.

In the district court, 551 F.Supp. 652, the principal parties cross-moved for summary judgment on agreed facts. Summary judgment was opposed by Frank Ponterio, a resident and voter of Staten Island, who had been permitted to intervene. The court granted appellees’ motion for summary judgment, concluding that the Board is neither an elective nor a legislative body, and that, accordingly, under Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), and Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), the constitutional principle of one person, one vote was inapplicable.

The district court determined that the Board is not an elective body because no independent election is held to select the Board’s members; rather, the Board “consists of a group of public officials who are already constitutionally elected to their respective offices as required by law.” In addition, the district court, in reliance on Sailors v. Board of Education, supra, determined that the Board’s primarily non-legislative character removed it from the reach of the Equal Protection Clause.

Appellants challenge the district court’s conclusion that the Board is not an elected body, arguing that because the members of the Board become Board members as a matter of law upon election, they are in fact and law “elected” to their respective positions. They further contend that the proper question is not whether the Board executes legislative tasks, but whether it exercises general governmental functions. Finally, appellants argue that the voting disparities created by the present electoral scheme are far greater than permissible under the Equal Protection Clause and such cases as Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971) and Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973).

Appellees contend that the Board members sit on the Board “ex officio" and accordingly are not elected to the Board itself. They argue further that this Cpurt should defer to the decision of the New York Court of Appeals in Bergerman v. Lindsay, 25 N.Y.2d 405, 306 N.Y.S.2d 898, 255 N.E.2d 142 (1969), appeal dismissed and cert. denied, 398 U.S. 955, 90 S.Ct. 2173, 26 L.Ed.2d 540 (1970), which upheld the constitutionality of the Board’s electoral scheme as it was at the time. Finally, appellees urge that the unique nature of the Board presents the type of “special circumstances” that the Supreme Court has indicated may justify “departures from strict equality” of the one person, one vote rule under Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971).

Intervenor-Appellee Ponterio defends the district court’s grant of summary judgment [689]*689and further contends that if the one person, one vote rule applies to the Board, substantial questions of fact are presented as to whether the present scheme in fact results in disproportionate voting power as between voters of different boroughs, and, if so, to what extent.

I.

In Hadley v. Junior College District, 397 U.S. 50, 56, 90 S.Ct. 791, 795, 25 L.Ed.2d 45 (1970), the Supreme Court held “that as a general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election ...” Accordingly, our primary task is to determine whether the Board of Estimate is selected “by popular election” and whether it performs “governmental functions.”

In finding the Board to be an appointed body, the district court relied primarily on Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), in which the Supreme Court held the one person, one vote standard inapplicable to a county school board which was selected by a process described as “basically appointive rather than elective.” Id. at 109, 87 S.Ct. at 1552. In Sailors, voters in local districts elected local school boards. Each local board then sent a delegate to a biennial meeting at which the county board was elected. As the Court explained: “there is not even a formal method by which a delegate [from a local school board] can determine the preferences of the people in his district. It is evident, therefore, that the membership of the county board is not determined, directly or indirectly, through an election in which the residents of the county participate.” Id. at 110 n. 6, 87 S.Ct. at 1553 n. 6.

Unlike the county school board members in Sailors, the members of the Board of Estimate are directly elected by the voters. Upon election to their respective positions, they automatically become Board members as a matter of law. Section 61 of the City Charter specifies:

“The mayor, the comptroller, the president of the council and the presidents of the boroughs shall constitute the board of estimate.”

(emphasis added).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jackson v. NASSAU COUNTY BD. OF SUP'RS.
818 F. Supp. 509 (E.D. New York, 1993)
Opn. No.
New York Attorney General Reports, 1991
Morris v. Board of Estimate
831 F.2d 384 (Second Circuit, 1987)
Morris v. Board of Estimate
592 F. Supp. 1462 (E.D. New York, 1984)
Morris v. The Board Of Estimate
707 F.2d 686 (Second Circuit, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
707 F.2d 686, 1983 U.S. App. LEXIS 27940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-board-of-estimate-ca2-1983.