Brief for Appellee — Lockport v. Citizens for Community Action at Local Level, Inc.

Cour, 0. &

FILED

sep 30 1976 |:

IN THE

Supreme Court of the United States

October Term, 1976

No. 75-1157

TOWN OF LOCKPORT, NEW YORK, and FLOYD SNYDER,

Individually and as Supervisor of the Town of

Appellants,

vs.

CITIZENS FOR COMMUNITY ACTION AT THE LOCAL LEVEL, ING

and FRANCIS W. SHEDD, Individually and on Behalf of

All Others Similarly Situated,

and

JOHN J. GHEZZI, Secretary of State of the State of New York, ARTHUR

LEVITT, Comptroller of the State of New York, LaVERNE S. GRAF,

Clerk of the County Legislature, County of Niagara, New York and

KENNETH COMERFORD, County Clerk, County of Niagara, eh

ellees.

Appellees,

APPEAL From A THREE Jupce Count or THE Unitep States Districr Court

FoR THE WESTERN District or New York.

BRIEF ON BEHALF OF APPELLEES

GRAF AND COMERFORD

JOHN V. SIMON, ESQ.,

Niagara County Attorney,

MILES A. LANCE, ESQ., of Counsel,

Court House,

Lockport, New York 14094,

Attorneys for Appellees Graf and Comerford,

Tel. 716-433-3857.

September, 1976.

——————_—_—_[_[_[_[—[—[—[—[— —_ ——$$—$LVLaSE|ES=ES=S=S==E=E=E=—==

BATAVIA TIMES, APPELLATE COURT PRINTERS be

A. GERALD KLEPS, REPRESENTATIVE

20 CENTER ST., BATAVIA, MH. ¥. 14020

716-343-0487

INDEX.

Page

Questions Presented .........--- cece cere rere ee eeees |

Statement of Facts...........0- cece eee re eee eeeeeees 2

Summary of Arguments ........------++eeeeeeeeeees 6

DARREN og ccccoccccrcccccccsccccccevcscoeseeees 6

Rees JuUdicdta occ ccc cers ccc crcccccvecssvscvccess 6

Jurisdiction of District Court ...........-+-+eeeee 7

District Court did not Improperly Preempt the Role

and Rights of the Electorate ........--+--++-++ 7

Enjoining Prosecution of State Court Action ....... 7

The Provisions of Article IX, Section (1) (h) (1) of the

New York State Constitution and Section 33, Subd.

(7) of the Municipal Home Rule Law Requiring

Double Referendums are Unconstitutional Under

the Fourteenth Amendment of the Constitution of

the United States ...........-00 cece eee eee eeeees &

Point I. The issue of constitutionality of Articie 1X (1)

(h) (1) of the Constitution of New York and Section

33(7) of the Municipal Home Rule Law is not moot

Point Il. The action is not barred by Res Judicata.... 9

Point Ill. The District Court had jurisdiction to render a

decis:on concerning the 1974 Charter and validating it

as part of its prior judgment concerning the 1972

CINE. once cccbddcvccvccsccccsscocevecvessesoees 12

Point IV. The District Court did not improperly

preempt the role and rights of the electorate ...... 13

II.

Page

Point V. There was no impermissible interference with

pending State Court proceedings.................. 14

Point VI. The provisions of Article IX, Section (1) (h)

(1) of the New York State Constitution and Section 33,

subd. (7) of the Municipal Home Rule law requiring

double referendums are unconstitutional .......... 15

Point VII. The judgment below should be affirmed .. 21

TABLE OF CASES.

Avery v. Midland County, 390 U.S. 474 (1967) ...... 16

Burstein v. U.S., 232 F2d 19 (8th Cir. 1956)....... wa

Cipriano v. Houma, 395 U.S. 701 (1969) ............ i8

City of Phoenix v. Kalodziepki, 399 U.S. 204 (1969).. 18

County of Niagara v. The State of New York—Civil

1972—656 (District Court for the Western District of

Se TD 0. cenbsédcncndneeensensebndeccuasencens 4

Dudley v. Meyers, 422 F2d 1389 (3d Cir. 1970)...... il

Eisen v. Carlisle and Jacquelin, 417 U.S. 156 (1974) 11, 12

F. Kersh Lake Drainage District v. Johnson, 309 U.S.

GD GE 6 Sods cckccdeteddvictdviessd dines bed. 11

Falk v. Falk Corporation, 390 F. Supp. 1276 (E.D. Wis.

SUE ccnsbove dave cibicn dWeads cUsbelee Hh hee dicen 10

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ....... 15, 16

Gordon v. Lance, U.S. 1 (1971) ............-0005- 20, 21

Gray v. Sanders, 372 U.S. 368 (1962) ............... 16

Hansberry v. Lee, 311 U.S. 32 (1940) ............... 11

Hill v. Stone, 421 U.S. 289, 95 Sct. 1637 (1975).... 18, 19

Hoffman v. Celebrezze, 405 F. 2d 833 (8th Cir. 1969) .... 13

Huffman v. Pursue, 420 U.S. 592 (1975)............. 14

International Tel. & Tel. Corp. v. General Telephone &

Electronics Corporation, 380 F. Supp. 976 (M.D.N.C.

a ee

III.

Page

Kramer v. Union School District No. 15, 395 U.S. 621

Ds cieeninetbbeandbeawesoeses bbusddneeuns 17, 18

Kreager v. General Electric Company, 497 F2d 468 (2d

CD onddsteccbdde debddmcecdccsncebs cbaus 10

Moore v. Ogilvie, 394 U.S. 814 (1969) .............. 9

National League of Cities v. Usery, 44 U.S.L.W. 4974

ES MU icis nabeesSdbecdesbcéccccces 16

Salyer Land Company v. Tulare Lake Basin Water

Storage District, 410 U.S. 719 (1973).............. 17

U.S. v. 788.16 Acres of Land, More or Less in Emmons

County, N D 439 F 2d 291 (1971)................. 13

United States v. Kabinto, 456 F2d 1087 (9th Cir. 1972),

Cert. denied, 409 U.S. 842 (1972)................. 11

United States Court for the Western District of New

York, November 22, 1974, 386 F. Supp. 1

isi pabbnapeusencddlesndcdenccceccsetennct 5, 10

Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972),

oe errr ree 16

Williamson v. Bethlehem Steel Corporation, 468 F2d

1201 (2d Cir. 1972) Cert. denied 411 U.S. 391 (1973) 10

Yates v. U.S., 354 U.S. 298 (1956).................. 12

Younger v. Harris, 401 U.S. 37 (1971) .............. 14-

STATUTES.

Section 33(7) of the Municipal Home Rule Law of the

State of New York................ 2, 3, 5, 8, 9, 15, 21

New York Education Law, Section 2012............. 17

28 U.S.C.:

ERE EAT Na ce eee ee 12

sa a 7, 14

IV.

RULES.

Federal Rules of Civil Procedure:

CONSTITUTIONS.

Article IX, Section (1) (h) (1) of the Constitution of the

Seate Of Now York ....:...ccccccces 2, 3, 5, 8, 9, 15, 21

United States Constitution, Fourteenth Amendment .. 2, 5,

8, 17, 18, 19

MISCELLANEOUS.

1(B) Moore Federal Practice, Section 0.411(1) 2d ed.,

err err rrr TT Sree” Fr 10

113 Moore:

Sostion G.41141) G6 ISS ..cccccccccccccccccceceses 11

Section 0.411(3) at 1423... 0... . cece eee ee eee eee 11

IN THE

Supreme Court of the United States

October Term, 1976

No. 75-1157

TOWN OF LOCKPORT, NEW YORK, and FLOYD

SNYDER, Individually and as Supervisor of

the Town of Lockport,

Appellants,

vs.

CITIZENS FOR COMMUNITY ACTION AT THE LO-

CAL LEVEL, INC. and FRANCIS W. SHEDD, In-

dividually and on Behalf of All Others Similarly Situ-

ated,

Appellees,

and

JOHN J. GHEZZI, Secretary of State of the State of New

York, ARTHUR LEVITT, Comptroller of the State of

New York, LAVERNE S. GRAF, Clerk of the County

Legislature, County of Niagara, New York, and

KENNETH COMERFORD, County Clerk, County of

Niagara, New York,

Appellees.

Appeal from a Three Judge Court of the United

States District Court For The Western

District of New York

BRIEF ON BEHALF OF APPELLEES GRAF

AND COMERFORD

Questions Presented.

1. Whether dismissal of a prior action brought in the

Federal Court by the County of Niagara on behalf of its

2

citizens and voters against the State of New York, which

raises substantially the same issues as are raised in this

action, constitutes a bar to this class action under the

doctrine of Res Judicata?

2. Whether the subject matter of this case, the con-

Stitutionality of Article IX, Section (1)(h)(1) of the Con-

stitution of the State of New York and Section 33(7) of the

Municipal Home Rule Law of the State of New York,

which arose in regard to the 1972 Charter and which arose

again in the 1974 Charter, is moot?

3. If not, whether the creation of dual voting units of

unequal population within a single political subdivision of

a state, consisting of a majority of those voting in areas

outside of the cities in the County and by a majority of

those voting in the cities within the County in reference to

a county charter form of local government, so dilutes and

debases the right of the county-wide majority as to violate

the equal protection clause of Amendment Fourteen to the

United States Constitution.

4. Did the District Court exceed its jurisdiction in

reinstating and amending its original judgment by decree-

ing that the 1974 County Charter supersedes the 1972

County Charter, and that the 1974 Charter be in full force

and effect as the instrument defining the form of local

government for Niagara County?

Statement of Facts.

In November, 1972, the voters of the County of Niagara

adopted a Charter by referendum vote with the following

results:

FOR AGAINST

Cities 18,220 14,914

Towns 10,665 11,594

Totals 28,885 26,508

In November, 1974, a charter was placed on the ballot

for Niagara County and the following vote was had:

FOR AGAINST

Cities 11,305 9,222

Towns 8,059 8,222

Totals 19,364 17,444

Both charters were passed by a total majority of the

persons voting in the referendum.

The County Attorney ruled that only a majority of the

votes cast were needed to pass the charter voted upon in

November, 1972, by the plain meaning of Article IX, Sec-

tion (1)(h)(1) of the New York State Constitution, and

Section 33, Subdivision 7 of the Municipal Home Rule

Law of the State of New York which implements Article

IX, Section (1)(h)(1) of the New York Constitution.

The Secretary of State of the State of New York refused

to accept for filing the Charter adopted in 1972 on the

grounds that the 1972 Charter did not pass by a majority

of votes in the areas outside of the cities in the County

and by a majority of those voting in the cities within the

County, by a separate majority vote.

The County of Niagara, relying on the opinion of the

County Attorney, brought an action challenging the

refusal of the Secretary of State to accept the 1972 Charter

for filing.

a a A ee ee

4

The Title of the action was County of Niagara vs. The

State of New York—Civil 1972—656 (District Court for

the Western District of New York). This action was dis-

missed by Honorable Judge John O. Henderson who found

no substantial federal question requiring the convening of

a three-judge Court (A-178). Judge Henderson states:

“Where a state exercises power wholly within the

domain of state interest, it is insulated from federal

judicial review. Gomillion v. Lightfoot 364 U.S. 339,

347 (1960).

Title 28, United States Code, Section 2281 does not

require the convening of a three-judge court when the

constitutional attack upon a state statute is insub-

stantial . . . The facts presented by this case do not

raise a substantial federal question.

In light of the foregoing, this court does not reach the

other contentions of the Plaintiff. Plaintiff's motion to

convene a three-judge court is denied. The motion of

Defendant to dismiss is granted.” (Emphasis sup-

plied).

It was decided by the County Legislature of Niagara

County not to appeal the District Court’s decision on the

1972 Charter and to propose a different Charter which the

voters might find more acceptable. The County of Niagara

was not enjoined by Judge Hendersen’s decision from

taking such action, nor by any subsequent order. The

results of the November, 1974 referendum were as previ-

ously stated and raised the same issue as did the

referendum on the Charter adopted in November, 1972.

This is 4 matter capable of repetition yet evading review.

In the meantime, Plaintiff-Appellees, on May 7th, 1973,

commenced an action for the same relief and a three-

judge Court was convened by Judge John T. Curtin

5

(W.D.N.Y.) and resulted in a judgment (A-130), 386 F.

Supp. | (1974), which related to the Charter adopted in

November, 1972 (A 146-147).

The provisions of the judgment of January 9, 1975 (A

146-147), declared Article IX, Section (1)(h)(1) of the

New York State Constitution and Section 33, Subdivision

(7) of the Municipal Home Rule Law of the State of New

York were unconstitutionally in violation of the equal

protection clause of the Fourteenth Amendment; and, the

Court ordered the implementation of the Charter adopted

in November, 1972.

After an intervening appeal, the three-judge District

Court on remand from the United States Supreme Court,

ordered implementation of the Charter adopted in

November, 1974 by a judgment entered December 15, 1975

(A 167-169).

The appellants brought a special proceeding in New

York State Supreme Court attacking the 1974 charter. The

State Court dismissed this special proceeding on the 28th

day of July, 1975 after adopting the reasoning of the

Federal District Court. The State Court further found that

all New York State procedures for filing a charter had

been complied with.

Pursuant to the 1974 Charter, a County Executive was

elected in November, 1974 and is now serving. County

Legislators have been elected to four-year terms, and

many department heads appointed and departments im-

plemented by the hiring of staff personnel. A Com-

missioner of Finance will be elected in November, 1976.

6

The three-judge Court had both the 1972 and 1974

Charters before it on remand from the United States

Supreme Court and also the necessary statutory law. The

Court states (A 165):

“First of all, as admitted by the Town of Lockport

and as is evident from a perusal of the 1972 and 1974

Charters, there is no substantial difference between

the two Charters. The only differences are merely

technical ones relating to the functions and duties of

the various officers and branches of the proposed

county government.”

There is no question that all either charter doss is to

streamline administrative functions of county govern-

ment. Section 105 of the 1974 Charter is as follows:

“Section 105. Local Government Functions, Facilities &

Powers Not Transferred, Altered or Impaired. No func-

tion, facility, duty or power of any city, town,

village, school district or other district or of any of-

ficer thereof is or shall be transferred, altered or

impaired by this charter or code.”

Summary of Arguments.

Mootness.

The subject matter of this action is not moot since the

problem presented herein is one which is capable of

repetition, and there still exists a definite and concrete

controversy between the parties.

Res Judicata.

Res Judicata is not applicable in this case, since the

private citizens who are members of the plaintiff class, in

the instant action, are not bound by the judgment in the

5

prior action because they were not formal parties to that

action, and there is no basis upon which to hold them in

privity with Niagara County.

Jurisdiction of District Court.

The District Court had jurisdiction to render a decision

concerning the 1974 charter and validating it as part of its

prior judgment concerning the 1972 charter.

District Court did not Improperly Preempt the Role

and Rights of the Electorate.

In regard to appellants statement that there was a

“change of rules after the game was played”, the District

Court states on October 23, 1975, that it “is simply ir-

relevant to a determination of whether the sections are

constitutional”. Appellants make an assertion that voters

participated in the voting with the idea that a double

referendum would be required in November, 1972. This is

obviously unprovable and the result of the referendum

was the same in November of .1974 when all voters must

have known of the controversy between the parties.

Enjoining Prosecution of State Court Action.

The January 9, 1975 judgment by the District Court

pursuant to 28 USC, Section 2283 enjoined the Town of

Lockport and its agents from proceeding further with any

state court action to effectuate the prior District Court’s

judgment which otherwise would be violated by the state

court proceedings.

The Provisions of Article IX, Section (1Xh\M1) of the New

York State Constitution and Section 33, Subd. (7) of the

Municipal Home Rule Law Requiring Double Referendums

are Unconstitutional Under the Fourteenth Amendment of

the Constitution of the United States.

The instant case is a violation of a citizen’s equal

protection under the Fourteenth Amendment. Once a

Statutory right is granted to a citizen to vote (Article IX,

Section (1)(h)(1) of the New York State Constitution; Sec-

tion 33(7), Municipal Home Rule Law of New York) that

right cannot be conditioned to result in invidious dis-

crimination unless it can be legitimized by compelling

state interest. There is no justifiable state interest in hav-

ing two units, cities and areas outside of cities, voting by

dual referendum on a matter which affects both units in

the same manner.

POINT I

The issue of constitutionality of Article IX (1\h}\1) of

the Constitution of New York and Section 33(7) of the

Municipal Home Rule Law is not moot.

The issue is not whether the 1972 Charter is moot, but

whether the issue of the dual referendum requirement es-

tablished by statutes and needed to pass the 1972 and 1974

Charters, is moot.

First of all, there is no substantial difference between

the 1972 and 1974 Charters, as decided by the District

Court (A 19-31, 70-127). The issue in both Charters has

been the unconstitutionality of the statutes and consti-

tutional provisions in question.

9

Under the U. S. Supreme Court’s direction on remand,

the judgment was vacated and the Court directed to con-

sider the 1974 Charter, and the District Court made it the

effective instrument for governing Niagara County. The

1974 Charter has been substantially implemented at the

present time. Therefore, there exists a live controversy or

case before the Court within the meaning of cases such as

Moore v. Ogilvie, 394 U. S. 814, (1969) and subsequent

cases where mootness has not been held if the issue is

capable of repetition yet evading review.

POINT Il

The action is not barred by Res Judicata.

On April 3, 1973, the County of Niagara brought suit

against the State of New York on behalf of voters, seeking

a declaratory judgment and injunctive relief against en-

forcement by defendants of Article IX (1)(h)(1) of the

New York Constitution and Section 33(7) of the Municipal

Home Rule Law of the State of New York. The defendant

now pleads this dismissal as res judicata to the instant

case.

Under settled law, three factors must be present to

support a defense of res judicata:

1. There must have been a “final judgment on the

merits” in the prior action.

2. Identical issues sought to be raised in the se-

cond action must have been decided in the prior ac-

tion.

3. The party against whom the defense is asserted

must have been a party to or in privity with a party to

10

the prior action. Kreager v. General Electric Company,

497 F2d 468, 471 (2d Cir. 1974), quoting from Zdanok

v. Glidden Company, Durkee Famous Foods Division,

327 F2d 944, 955 (2d Cir. denied, 337 U.S. 934

(1964)).

These Appellees concede that there was an identical

issue in the prior action as in the action presently before

the court.

As to the element of plaintiff-appellee being a party to

the first action or in privity, the District Court in the

decision of the United States Court for the Western District

of New York, November 22, 1974, 386 F. supp 1, (A-130)

concluded that the third requirement of Kreager, supra,

was absent. The court held that “private citizens who are

members of the plaintiff class are not bound by the judg-

ment in the prior action purportedly brought on their be-

half, since they were not formal parties to the action and

there is no basis upon which to hold them in privity with

Niagara County. Williamson v. Bethlehem Steel Corpora-

tion, 468 F2d 1201, 1203, 1204, (2d Cir. 1972) Cert. denied

411 U.S. 391, 1973; 1(B) Moore Federal Practice, Sec.

0.411(1) 2d ed., 1974.

Plaintiff-appellee was not a formal party to the previous

action, since he was not named nor did he participate in

the prior action, nor can he be considered in privity with

the County of Niagara since there was no legal re-

lationship or legal interest which the two share.

International Tel. & Tel. Corp. v. General Telephone & Elec-

tronics Corporation, 380 F.Supp. 976, (M.D.N.C. 1974),

and Falk v. Falk Corporation, 390 F.Supp. 1276 (E.D.Wis.

1975). In addition, there is no authority for the proposi-

tion which appellant put forth, that a political subdivision

has privity with its citizens merely by citizenship.

m=,

The District Court, supra, goes on to sta*e that absent

statutory or contractual authority, a person cannot be

bound without his consent by a judgment in a prior action

to which he was not a party simply because a party to that

litigation purports to represent all individuals who share

an interest in the subject of the action. Dudley v. Meyers,

422 F2d 1389, 1393-1394 (3d Cir. 1970), 113 Moore, Sec-

tion 0.411(1), at 1253, and Section 0.411(3) at 1423, F.

Kersh Lake Drainage District v. Johnson, 309 U.S. 485

(1940); United States v. Kabinto, 456 F2d 1087 (%h Cir.

1972), Cert. denied, 409 U.S. 842 (1972). There was no

statutory or contractual authority in the instant case to

establish that appellee was in privity with or a party to the

previous action. There is also no claim that the County of

Niagara was authorized to seek vindication of the

constitutional rights of its “citizens and voters”, or that

any member of the present plaintiff class consented to

being represented in the prior action of the court.

The prior action was not commenced nor prosecuted by

plaintiff-appellees as a class action on behalf of the voters

of Niagara County, since it was not brought pursuant to

Federal Rules of Civil Procedure, Section 23. If it were

brought as a true class action, then the court would have

to consider whether proper notice, under Eisen v. Carlisle

and Jacquelin, 417 U.S. 156, 172-177 (1974), and adequate

representation, Hansberry v. Lee, 311 U.S. 32 (1940), were

granted to the class. Looking at the facts, we can see that

the District Court, in the prior action, was not called

upon to make the initial determination under Rule 23 of

the Federal Rules of Civil Procedure as to whether the

County could or would “fairly and adequately protect the

interest of the class” claimed by the defendant to have

12

been represented. See Federal Rules of Civil Procedure,

Sec. 23 a(4). Nor was the Court afforded the opportunity

to consider the desirability or necessity of formulating

provisions for notice to the members of the class. Federal

Rules of Civil Procedure, Sec. 23 d(2), Eisen v. Carlisle and

Jacquelin, supra, or to deal with similar procedural mat-

ters, Federal Rules of Civil Procedure, Sec. 23 d(5).

POINT Ill

The District Court had jurisdiction to render a deci-

sion concerning the 1974 Charter and validating it as

part of its prior judgment concerning the 1972 Charter.

The District Court had before it, on October 6, 1975,

the following order of the United States Supreme Court:

“The Judgment is vacated and the case is remanded

to the United States District Court for the Western

District of New York for reconsideration in light of

the provisions of the new Charter adopted by Niagara

County in 1974.”

Under 28 USC 2106, and Yates v. U. S., 354 U. S. 298

(1956) the Supreme Court or any other court of appellate

jurisdiction may, affirm, modify, vacate, set aside, or re-

verse any judgment, decree, or order lawfully brought

before it for review and may direct such further

proceeding as may be just under the circumstances.

All parties stipulated to have the 1974 Charter as an

exhibit upon the remand of the U.S. Supreme Court to the

District Court.

On remand, all of the parties consented to making the

1974 Charter part of the record as an exhibit. The District

Court on October 23, 1975 stated: A-163

a

13

“The ies stipulated that the 1974 Charter and

also prone = in the New York State Courts in

which the Town of Lockport sought to invalidate the

1974 Charter be marked as exhibits in this case.

A stipulation of fact fairly entered into, where there is

no mutual mistake, is controlling and conclusive and

courts are bound by it.

U. S. v. 788.16 Acres of Land, More or Less in Emmons

County, N D 439 F 2d 291, 1971; Hoffman v. Celebrezze, 405

F. 2d 833 (8th Cir. 1969); Burstein v. U. S., 232 F2d 19

(8th Cir. 1956).

POINT IV

The District Court did not improperly preempt the

role and right: of the electorate.

The answer to the assertion that the District Court im-

i f the electorate is

properly preempted the role and rights o

the answer that was given by the District Court, that heres

claim that the voters must know the “rules of the game’’ is

simply irrelevant in the face of a constitutional challenge.

To require another referendum now would inject

political issues into the referendum process not present

when the 1974 Charter was adopted, such as the per-

formance in office of those who won elections conducted

under the 1974 charter, and the political affiliations of

those who won contests. It would give the losing candi-

dates for the office of County Executive and County

Legislature a chance to defeat the incumbents by indirec-

tion.

14

Section 2402 of the 1974 charter states as follows:

“Section 2402. Amendment of Charter. This charter

may be amended in the manner provided by law. Ex-

cept as otherwise provided in this charter, any local

law which would create or abolish an elective county

Office . .. shall be subject to mandatory

referendum. . .”

Subsequent sections provide for a Charter Review

Board and a systematic review of the charter.

If change or repeal of the 1974 charter is desirable, the

state legal machinery is present to allow such change in an

eminently equitable manner.

A new referendum on the charter proper would result in

almost complete chaos in Niagara County government and

impair the validity of official acts taken since January 1,

1976. It would also produce years of litigation and a mul-

tiplicity of lawsuits. This could not be an equitable result

nor an economically provident one.

In the general elections of November, 1975, political

power was taken from one major party and given to

another by the will of the voters. Naturally, the losers

want to change this result, if possible, by destroying the

1974 charter. They want to change the result of the recent

elections, after they have been held.

POINT V

There was no impermissible interference with pend-

ing State Court proceedings.

Under Younger v. Harris, 401 U.S. 37 (1971) and Huff-

man v. Pursue, 420 U.S. 592 (1975) as they relate to 28

U.S.C., Sec. 2283, the District Court had to issue an in-

ee

15

junction to sustain its judgment. The State Court proceed-

ings were before the District Court on remand by stipula-

tion. The constitutional determination had already been

made. To accept appellants’ contentions would give New

York State Courts the right to review a matter already de-

cided, which could again be presented to the United States

Supreme Court.

As to the question of procedural defects in filing the

1974 charter, that issue was resolved against appellants in

the state courts. Administratively, the Secretary of State

of the State of New York has filed the charter. In any

event, appellants should have raised it on remand to the

District Court since the remanded direction vacated the

District Court’s judgment. They had every opportunity to

raise the issue and failed to do so.

POINT VI

The provisions of Article IX, Section (1)(h\(1) of the

New York State Constitution and Section 33, subd. (7)

of the Municipal Home Rale law requiring double re-

ferendums are unconstitutional.

There can be no disagreement with Gomillion v. Light-

foot, 364 U.S. 339 (1960) in a general sense. New York

State, with a proper procedure, could abolish all

referenda for adoptions of charters in political sub-

divisions.

Voting when granted by a state is a federally protected

right espoused by many decided cases and a state is not

insulated from Federal Judicial review in regard to a vio-

lation of it.

16

Gomillion v. Lightfoot, supra, held that the right of all

voters to participate on an equal basis in elections for

representatives of the people was such a right.

To say that each voter has an equal right to vote for

county legislators from comparable districts and gen-

erally for a county executive, but not an equal right to

vote for a form of government under which such

legislators and Executive are guided and constrained is a

perversion of the Gomillion doctrine. Wells v. Edwards,

347 F. Supp. 453, at 455 (M.D. La. 1972), aff'd 409 U. S.

1095 (1973) only limited the general rule where judges are

concerned; judges being persons not directly involved in

the elective political process of governing the populace.

The right of equal citizens to vote for a form of govern-

ment equally affecting all of them is directly within the

contemplation of such cases as Gray v. Sanders, 372 U. S.

368 (1962) and Avery v. Midland County, 390 U.S. 474

(1967).

Addressing the decision of National League of Cities v.

Usery, 44 U.S.L.W. 4974 (U.S. June 24, 1976), raised by

the Appellants, it is clear it has no relevance to this case.

The Federal Government is not forcing its will on the

State of New York by the District Court’s decision but

only saying that if you hold an election, each citizen

equally affected has an equal vote.

What rational or compelling State interest has been

posited to justify and defend the veto power given to the

towns as a group and the cities as a group to defeat a

charter affecting equally all citizens as a group?

17

In Salyer Land Company v. Tulare Lake Basin Water

Storage District, 410 U.S. 719 (1973) landowners only were

allowed to vote as opposed to others because landowners

were paying the cost of a service benefit district. That

would seem to be a valid distinction to limit a federally

protected right.

Salyer can be distinguished factually from the present

case. Salyer involved the election of directors of a Cali-

fornia Water Storage District which had been formed only

to provide water to farmers in the Tulare Lake Basin. The

cost of the project undertaken by the defendant water

storage district was assessed against the land serviced by

the district in proportion to the benefits received. The

limited purpose of the district was held to warrant the

challenged voting scheme whereby each voter was entitled

to cast one vote for each $100 value of land and improve-

ments owned. Unlike the situation in Salyer, the functions

which are to be performed by the County of Niagara

government under its Charter are of a general govern-

mental nature. Such governmental functions clearly

would affect all residents of Niagara County equally. No

one in Niagara County would have a special interest in the

1974 Charter and there are no unusual or limited purposes

of government found in the Charter warranting a Salyer

type result.

A group of cases discredit the defendant-appellant’s

position, beginning with Kramer v. Union School District

No. 15, 395 U.S. 621 (1969). In Kramer, the court in-

validated municipal referenda on the grounds that they

contravened the Equal Protection Clause of the Fourteen-

th Amendment. Kramer, the first of these cases, overturn-

ed Section 20'2 of the New York Education Law which re-

stricted otherwise qualified voters from participating in

school district elections unless they either owned or

leased realty in the area or were parents of school

children in local schools. The Court concluded at the out-

set that the provisions would be subject to strict scrutiny

“to determine whether each local resident has as far as

possible, an equal voice”. In Cipriano v. Houma, 395 U.S.

701 (1969), the court declared a violation of the Four-

teenth Amendment regarding a statute which limited the

voting franchise in municipal utility bond election to

property taxpayers. In City of Phoenix v. Kalodziepki, 399

U.S. 204 (1969), the court invalidated the limitations

placed on elections regarding the issuance of general

obligation bonds. Therefore, the Supreme Court has al-

ready applied the one man-one vote principle to non-

representationai referenda. In all three cases, Kramer,

Cipriano and Phoenix, the attempt to narrow the elective to

“those who were primarily interested” was not found to

Satisfy the compelling state interest requirement of the

Fourteenth Amendment. The most recent addition to this

line of cases is Hill v. Stone, 421 U.S. 289, 95 Sct. 1637

(1975). The court in Hill nullified provisions of the Texas

Constitution and Election Code as well as the Fort Worth

Charter, which limited the franchise in municipal bond

elections to property owners. The Court concluded that

the bonds were not a matter of “special interest” to

property owners, and neither was there a compelling state

interest to justify limiting the franchise. Hill appears to be

dispositive of the issues in this case. The Texas “dual box

election procedure” was determined to be a violation of

the Fourteenth Amendment. In Hill, a bond election was

involved in which people owning property voted as a

19

group and non-property owners voted as a group. The

claim that there was a special interest which negated the

impact of the Fourteenth Amendment and that such

special interest represented a compelling state purpose,

was rejected. The dual referendum requirement in ques-

tion before this Court in the present case is an even

greater violation of the Fourteenth Amendment than

found in Hill v. Stone, supra. The present case involves

only general governmental powers. The townspeople of

the County of Niagara have not acquired a “special in-

terest” over the city people on the adoption of the

Charter, nor can it be proven that they do have a special

interest; nor can the reverse be proven. The Charter was

created to affect all individuals in the County, Towns and

Cities equally, with the provisions affecting the same

equally.

Since the townspeople or city dwellers have not ac-

quired a special interest, and there is no compelling state

interest to justify limiting or diluting equal voting rights,

the statute and constitutional provision must fall for vio-

lating the Fourteenth Amendment.

The defendants proceed to argue that because of the

potential long-range untold consequences of the Niagara

County referendum, the State was justified in placing the

responsibility for such a fundamental change as that af-

fecting the form of government in the hands of a super-

majority. They argue further that since each of the

separate voting units within Niagara County might have

vetoed the adoption of the Charter, the dual majority re-

quirement did not authorize discrimination against any

identifiable group and therefore did not violate the Four-

teenth Amendment. No it didn’t. It authorized dis-

crimination against two identifiable groups.

20

The case of Gordon v. Lance, U.S. 1 (1971) is clearly

distinguishable from the instant case. In Gordon, the

Supreme Court upheld a 60% super majority requirement

in referendums on general obligation municipal bonds

and increased tax levy. They held that there was no iden-

tifiable group which was shown to be discriminated

against. The Supreme Court concluded “it must be

remembered that in voting to issue bonds, voters are com-

mitting, in part, the credit of infants and of generations yet

unborn, and some restriction on such commitment is not

an unreasonable demand”. In the instant case there is no

such long range consequences of the Charter form of

government. Also, if census statistics are resorted to,

there is an unlimited potential for discrimination of

blacks within the cities of the County of Niagara. This is a

consideration worth noting and for requiring a strong

state interest if defendant-appellants are to justify a dual

referendum requirement.

Gordon is also distinguishable on yet additional

grounds:

First, the dual majority requirement of the instant case

does not provide, as defendants-appellants suggest, for a

simple majority vote. In fact, the dual majority require-

ment of the instant case has a potential for unlimited

dilution of the majority vote. Conceivably, a Charter

could lose by one vote in either the towns or cities and be

passed by a tremendous majority overall. In Gordon there

was a super-majority limit of 60%.

Second, unlike the situation in Gordon, the dual ma-

jority requirement does discriminate against and did

dilute and debase the vote of an identifiable group, both

the City dwellers of Niagara County and town dwellers.

21

Third, the Court in Gordon reaffirmed the holding in

prior cases that where there was a dilution of voting

power based on geographical location, it was imper-

missible if there was no valid special relationship to the

interest of those groups in the subject matter of the elec-

tion.

Previously, these Appellees have shown in this docu-

ment that there is no legal or factual differential upon the

impact of this Charter upon the categories of City resi-

dents as distinguished from Town residents.

Had the State of New York accepted these Appellees

original construction of the New York Constitution and

Municipal Home Rule Law to the effect that a dual

referendum was required only when there was a transfer

of functions, powers or duties or other infringements

upon existing cities or towns, in a proposed Charter, the

Appellants might have some validity to their arguments.

But that issue is foreclosed.

POINT VII

The judgment below should be affirmed.

Respectfully submitted,

JOHN V. SIMON, Esq.,

Niagara County Attorney,

Miles A. Lance, Esq.,

of Counsel,

Court House,

Lockport, New York 14094,

Attorneys for Appellees Graf

and Comerford,

Tel. 716-433-3857.