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

HICHAML RODAK, JR., CLERK

senate -emmeempeneenmnal

Supreme Court of the United States

October Term, 1975

No. 75-1157

TOWN OF LOCKPORT, NEW YORK, and FLOYD SNYDER,

Individually and as Supervisor of the Town of Lockport, pura

vs.

CITIZENS FOR COMMUNITY ACTION AT THE LOCAL a ING

and FRANCIS W. SHEDD, Individually and on Behalf of

All Others Similarly Situated,

i Appellees,

a

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

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

Clerk of the ty Legislature, County of We liew York and

KENNETH COMERFORD, County ae ee

es.

APPEAL FROM A THREE JupGE Court or THE Unitep States Districr Courr

FoR THE WESTERN District or New York.

BRIEF OF APPELLEES

CITIZENS FOR COMMUNITY ACTION AT THE LOCAL

LEVEL, INC. and FRANCIS W. SHEDD, individually

and on Behalf of All Others Similarly Situated.

JOHN J. PHELAN,

2300 Erie County Savings Bank Building,

Two Main Place,

Buffalo, New York,

or

MOOT, SPRAGUE, MARCY, LANDY,

FERNBACH & SMYTHE,

Buffalo, New York,

Attorneys for Appellees, Citizens for Community Action at

the Local Level, Inc. and Francis W. Shedd, Individually

and on Behalf of All Others Similarly Situated.

—_—————eeeeeee lS

BATAVIA TIMES, APPELLATE COURT PRINTERS &

A. GERALD KLEPS, REPRESENTATIVE

20 CENTER ST., BATAVIA, H. Y. 14020

716-343-0487

INDEX.

Page

Es 945.006.0509 660004000.0060000R0 6 00-0058 H008 |

Gopemtians FUGRSMISD. .6 i ces cescsicdecesrsccscevcices 2

eG SS iaik nico ceca cece decwdediccvees 3

WED PIE « 0 0 < 0 6680.06) Kbiai0 Sc tb deccccceccceccese 9

I. The election at issue herein is one for a form

of government in a unit of local government,

having general governmental powers, in which no

group of voters has any special interest ......... 9

II. It is the election franchise that is the fun-

damental right, entitled to protection. The purpose

of the election is secondary .................... 11

III. The restriction upon the franchise, justified

by the appellant to prevent encroachment by city

and town voters on one another, cannot stand... 13

IV. The dual box restriction on the franchise

does not meet the stringent test of justification; that

it is necessary to promote an articulated state goal

and must constitute a compelling state interest... 15

V. The Sovereignty argument of the appellant is

PPT TT TTT ITT LITT TTT TTT ee 17

VI. The argument by appellant from previous

cases, that the dual majority scheme is not offensive

to equal protection, is not supported by those cases 17

VII. The remand of this Court was carried out

properly by the District Court.................. 19

VIII. Res Judicata is not a good defense ..... 21

IX. There is no reason for not giving the

aggrieved voters the benefit of their fundamental

constitutional rights retroactively ............... 22

Il.

Page

X. The mootness and jurisdiction arguments of

the appellant are irrelevant .................... 23

Conclusion. The judgment of the District Court granted

on January 9, 1975, as reinstated and amended by the

judgment granted on December 15, 1975, should be

PS 6 00. 0000eeédedssnece dannaenameedenee 24

TABLE OF CASES.

Avery v. Midiand County, Texas, 390 U.S. 474, 88 S.

ay 10,12,17,18

Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691 (1962).... 22

Briggs v. Pennsylvania R. Co., 334 U.S. 304, 68 S. Ct.

Se ED ons < on snnmenawee denies cnie date 19

Carrington v. Rash, 380 U.S. 89, 85 S. Ct. 775 (1965) 11

Cipriano v. City of Houma, 395 U.S. 701, 89 S. Ct.

See Gn 4.00-2 0006000 cams +06 tenons Obes 10,22

Dusch v. Davis, 387 U.S. 105, 87 S. Ct. 1549 (1967).. 18

Epstein v. Goldstein, 110 F.2d 747 (CA 2d Cir. 1940) 19

Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125

Gees omen denctasecnsns eneenennent ean ahs 17

Gordon v. Lance, 403 U.S. 1, 91 S. Ct. 1889 (1971). . 16,18

Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801

SEs 64000 000000 deeenddeeecsbaceenneksnnl 10, 16,18

Hadley v. Junior College District of Metro, Kansas

City, 397 U.S. 50, 90 S. Ct. 791 (1970) ............ 11

Hill v. Stone, 421 U.S. 289, 95 §S. Ct. 1637

GeO UE 00:60:00 gear cgnnss and techusenveddiecsdis 10,11

Kramer v. Union Free School District, 395 U.S. 621,

ey ee GR, Fi Oc cn ewan co cnnsitnte cote ecdi 10,15,18

Lucas v. Forty-Fourth General Assembly of Colorado,

377 U.S. 713, 84 S. Ct. 1459 (1964) ............... 17

III.

Page

Phoenix v. Kolodziejski, 399 U.S. 204, 90 S. Ct. 1990

COI cirdcc cbc bdEL i oe ic dwddes bends desdde cites 10,22

Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362

GEIS ok. c vcccancocadedvoveredosdecccecscseeeess 10,22

Sailors v. Board of Education, 387 U.S. 105, 87 S. Ct.

BORD CIGD ov ceccccccccccePencccvessoscccscseses 17

Salyer Land Company v. Tulare Lake Basin Water

Storage District, 410 U.S. 719, 93 S. Ct. 1224 (1973) 19

STATUTES.

2 McKinney’s Consolidated Laws of New York ...... 10

11 McKinney’s Consolidated Laws of New York ..... 14

35 c McKinney’s Consolidated Laws of New York ... 10

61 McKinney’s Consolidated Laws of New York...... 14

§ 33(7) Municipal Home Rule Law.................. 10

RULES.

Rule 62(c) Federal Rules of Civil Procedure......... 23

CONSTITUTIONS.

New York Constitution, Article 9, § 1(h)(1).......... 3,10,

15,19

United States Constitution, Fourteenth Amendment. . .3,6,7

12,19

MISCELLANEOUS.

5A Moore’s Federal Practice, § 52.13 (1975) ......... 19

6A Moore’s Federal Practice, 9 59.16 (1975)......... 19,20

Oxford English Dictionary (1971) .............-.+45- 13

Supreme Court of the United States

October Term, 1975

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 LOCAL

LEVEL, INC. and FRANCIS W. SHEDD, Individually and

on Behalf of All Others Similarly Situated,

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.

BRIEF OF APPELLEES

Jurisdiction

The jurisdiction was properly stated in the appellant’s brief

except on the subject of the remand by this Court. The cause

was remanded on October 6, 1975 for reconsideration in light

of the provisions of the new Charter adopted by Niagara

2

County in 1974 (A. 161). On October 8, 1975, the District

Court heard argument of counsel and a 1974 County Charter

and the official record of the vote cast for the 1974 Charter

was made part of the record in the cause (A. 70, 128). On Oc-

tober 23, 1975, the District Court filed a decision and made

specific findings amending the judgment of January 9, 1975 so

that the 1974 Charter, which superseded the 1972 Charter, is

in full force and effect as the instrument defining the form of

local government for Niagara County (A. 166). The reinstated

and amended judgment was granted on December 15, 1975.

Questions Presented

1. Whether creation of dual voting units of unequal

population within a single political subdivision of a state,

having general governmental powers, consisting of the voters

of the cities of a county and the areas outside of the cities, and

the concomitant requirement of separate majorities in each

unit for adoption in a county-wide referendum of a county

charter form of local government, so dilutes and debases the

rights of the county-wide majority as to violate the one man,

one vote principle.

2. Is the creation of separate voting units of unequal

population within a single political subdivision having

general governmental powers, based upon the place of

residence, within the cities of a county considered as one unit

and in the area outside the cities of a county considered as a

separate unit, in which no specific group of voters were

primarily interested or affected as compared to any other

group, an inherently suspect classification for voting pur-

poses which requires the State to furnish justification under

Strict scrutiny, that such constitutional and statutory

3

provisions are necessary to promote an articulated state goal,

which classification is based upon a compelling state interest?

3. Does the creation of separate classifications of voters,

consisting of voters of the cities of a county considered as one

unit and the voters in the area of a county outside of cities, in

a unit of local government having general governmental

powers over the entire geographic area, in which no specific

group of voters was primarily interested or affected as

compared to any other group, restrict the franchise to vote in

violation of the Fourteenth Amendment?

4. Did the District Court properly interpret the remand of

October 6, 1975 from this Court and has the appellant pre-

served the right to raise such question on this appeal?

5. Whether dismissal of a prior action brought in the

District Court by che County of Niagara, as the party plain-

tiff, purportedly on behalf of its citizens and voters against

the State of New York which raised substantially the same

issues as raised herein, constitutes a bar to the instant class ac-

tion by aggrieved voters under the doctrine of res judicata.

Whether the defense in bar of res judicata may be raised in this

Court by the appellant who was not a party to the prior ac-

tion.

Statement of Case

The County in New York State is a general unit of local

government. Article 9 of the New York Constitution, the

local government article, which was adopted in 1963, contains

a provision, Article 9, § 1(h)(1), for the adoption of an alter-

native form of county government commonly known as a

County Charter form, which primarily converts county

government from a single branch legislative form of local

government to an executive-legislative form. The provision

applies to all areas of the State other than New York City and

contains the requirement that no such form of government, or

amendment thereof, shall become effective unless approved

on a referendum by a majority of the votes cast in the area of

the county outside the cities and in the cities of the county, if

any, considered as one unit. On September 6, 1972, the

Niagara County Legislature adopted a Niagara County Char-

ter, the express purpose of which was the separation of the

County Legislative and Executive functions and respon-

sibilities; the securing of the greatest possible County Home

Rule, and the accomplishment of increased efficiency,

economy and responsibility in the Niagara County govern-

ment (A. 19). It was alleged by the plaintiffs-appellees in their

complaint and amended complaint and admitted by the

County defendants-appellees in their answer to the complaint

that no specific group of voters, residents or other persons

was primarily affected or interested as compared to another

group of voters (A. 12, 36, 54), (The County defendants-

appellees did not answer the amended complaint). By the ex-

press terms of the Charter, no function, facility, duty, or

power of any city, town, village, school district or other

district was to be transferred, altered or impaired by the

Charter (A. 27).

On November 7, 1972, the proposed Charter was voted

upon by the voters of the entire geographical unit, the County

of Niagara. It received a majority vote in the County as a

whole and in the cities of the County as a unit, but it did not

receive a majority vote in the towns of the County, the area

outside the cities of the County. Therefore, it was not cer-

tified as the duly adopted form of local government for

Niagara County.

5

The population of the cities of Niagara County as a unit is

147,026. The population of the area outside the cities is

88,694 (A. 34). In the 1972 referendum, a total of 55,393 votes

were cast. 11,594 negative votes were cast in the towns of

Niagara County, 20.93% of the total vote, which minority

vote prevented the adoption of the Charter (A. 12).

In December 1972, an action was commenced in the U. S.

District Court for the Western District of New York entitled

County of Niagara vs. State of New York in which the plaintiff

was represented by the Niagara County Attorney (A. 172). On

April 3, 1973, an order dismissing that action was granted (A.

178). On May 1, 1973, the plaintiff-appellee Shedd requested

the Niagara County Legislature, in session, to appeal the

dismissal of that action, to preserve it, to give him an op-

portunity to intervene or commence a separate action as a

voter and on behalf of all other voters throughout the County

who voted in favor of the Charter. The Niagara County

Legislature refused the request of Mr. Shedd (A. 183-185).

On May 4, 1973, the present action was commenced by Shedd

individually and as a class action on behalf of aggrieved

voters.

The order for a three judge District Court was granted on

April 24, 1974. The case was heard by the *hree judge District

Court on June 20, 1974. The decision was rendered on

November 22, 1974 (A. 130).

In the interim, on August 20, 1974, the Niagara County

Legislature adopted a 1974 Niagara County Charter subject to

a referendum on November 5, 1974 (A. 70). The proposed

1974 County Charter expressly superseded any prior local law

in the event of an inconsistency or conflict (A. 73) and by its

6

terms, no function, facility, duty or power of any city, town,

village, school district or other district was to be transferred,

altered or impaired by the 1974 County Charter (A. 73).

In the referendum of November 5, 1974 the voters of the

entire geographical unit of general government, the County of

Niagara, participated. The Charter received a majority vote

in the County as a whole and in the three cities of the County

as a unit but it was defeated by the class of voters in the area

outside the cities of the County (A. 128, 129). In 1974, 36,808

votes were cast in the referendum. 8,222 negative votes were

cast in the area outside of the cities of Niagara County,

22.33% of the total vote, which minority vote prevented

adoption of the Charter.

On January 9, 1975 a judgment was granted declaring the

constitutional rights of the voters of Niagara County pursuant

to the guarantee of equal suffrage contained in the Fourteenth

Amendment of the United States Constitution. The 1972

Charter was given full force and effect as the instrument

defining the form of local government for Niagara County.

The Secretary of State of the State of New York certified

the 1972 Charter as the form of local government for Niagara

County. This action the District Court had enjoined. On

February 28, 1975, the Secretary of State also certified the

1974 Charter as an independent act (Record-{ 28, app.

petition in State Court proceeding). The Niagara County

Legislature and the Niagara County defendants-appellees, on

advice of the County Attorney, decided there was an op-

portunity to implement the 1974 Charter, which had not been

the subject of a judgment declaring the double majority

provision of the New York Constitution in violation of the

7

Fourteenth Amendment. The County Attorney contended the

judgment of January 9, 1975 had become moot. The appellant

sought a determination that the judgment of January 9, 1975

was moot and a reversal of that entire judgment.

On October 6, 1975 this Court vacated the judgment of

January 9, 1975 and remanded the cause to the District Court

for reconsideration in light of the provisions of the new Char-

ter adopted by Niagara County in 1974 (A. 161). On October

8, 1975, the District Court heard arguments of counsel and

received the 1974 Charter and the official canvass of the vote

upon the 1974 Charter as exhibits (A. 70, 128). On October 23,

1975, the District Court rendered a decision reinstating the

earlier judgment and amending it to give the 1974 Charter full

force and effect as the instrument defining the form of local

government for Niagara County. Judgment was entered

thereon on December 15, 1974 which judgment also denied

the motion of the plaintiffs-appellees to amend the amended

complaint. A notice of appeal was filed on December 18,

1975. The appellant did not appeal from that portion of the

judgment denying the motion of the plaintiffs-appellees to

amend the amended complaint.

In its statement of facts, the appellant is inaccurate as to

certain facts which, we believe, should be corrected. In the

case of the settlement of the January 9, 1975 judgment which

implemented the 1972 Charter, when the plaintiffs-appellees

moved to settle that judgment, the Niagara County attorney

requested in a letter to the District Court a stipulation that the

judgment apply to the 1974 Charter (Record and Appendix

A-P. 10 of motion to affirm, plaintiffs-appellees, April 1976).

On the return of the motion to settle the judgment, the plain-

tiffs-appellees, in open Court, agreed to stipulate, but the At-

torney-General of the State of New York refused to enter into

a stipulation and there being no motion before the Court on

the subject or an appropriate application, the Court made no

determination of such issue and granted the judgment

prepared by the plaintiffs-appellees.

The appellant is also inaccurate that the plaintiffs-appellees

concurred that the 1974 Charter should be implemented,

rather than the 1972 Charter, without authorization of the

District Court.

At all times, the plaintiffs-appellees urged the District

Court and the County officials of Niagara County that the

judgment of the District Court must be specifically complied

with. A motion for further injunctive relief in further-

ance of the District Court’s judgment was made by the

plaintiffs-appellees on August 20, 1975 and was undecided

when the remand by this Court occurred on October 6, 1975

(A. 150-160). The plaintiffs-appellees then expanded such

motion to include a prayer for relief to amend the amended

complaint to add a cause of action pertaining to the 1974

Charter, which motion was denied (A. 162-170).

9

THE ARGUMENT

I. The election at issue herein is one for a form of

government in a unit of local government, having

general governmental powers, in which no group of voters

has any special interest.

The nature of county government in New York State and

the rights, privileges, functions and duties to be conferred

upon such government upon the adoption of a County Char-

ter are set forth in the County Charters which are contained in

the appendix (A. 19 et seq., 70 et seq.) and the complaint and

amended complaint of the plaintiffs-appellees (A. 12-13, 53-

54).

That the proposed Charter of County government is to

serve all the voters, citizens and residents of the entire

geographic area of the County uniformly and that no

specific group is primarily affected or is specially interested is

clear from the Charters. The plaintiffs-appellees alleged such

ultimate facts in each of their complaints (A. 12, 54). The

County defendants-appellees admitted the allegations (A. 36).

The State defendants-appellees denied the allegations but did

not plead affirmatively any facts to identify or justify any

group or class of voters having a special interest, either in

their answer or by any evidence in this cause (A. 66 ef seq.).

The Attorney-General of New York did contend, in effect, in

the District Court that residence in the cities or in the area

outside the cities of a county per se constituted a

constitutionally permissible special interest.

The appellant contends in this Court that city residence and

town residence, the area of the county outside the city, in New

York State, being in all instances divided into towns, is a suf-

10

ficient justif.cati-; © »e for the State of New York to create

separate classif. . i» of voters that should be upheld (App.

br. p. 25-33).

Thus the record to justify the restriction on the franchise

consists solely of the text of the New York Constitution, Art

9, § 1 (h) (1), 2 McKinney’s Consolidated Laws of New York,

P. 509 and its statutory implementation, § 33 (7) Municipal

Home Rule Law, 35c McKinney’s Consolidated Laws of New

York, P. 70.

The classification restricts the franchise of a class of voters

without the justification of a compelling state interest, which

is a disfranchisement that was struck down in Kramer vs.

Union Free School District 395 U. S. 621, 89 S. Ct. 1886 (1969);

Cipriano vs. City of Houma 395 U. S. 701, 89 S. Ct. 1897 (1969)

and Phoenix vs. Kolodziejski 399 U. S. 204, 90 S. Ct. 1990

(1970). It is the dual box voting procedure rejected in Hill vs.

Stone 421 U. S. 289, 95 S. Ct. 1637 (1975).

The classification constitutes a dilution or debasement of

the franchise by unequal citizen population units, as well, and

a dilution of equal voting power which was found defective in

Gray vs. Sanders, 372 U.S. 368, 83 S. Ct. 801 (1963), in

Reynolds vs. Sims, 377 U. S. 533, 84S. Ct. 1362 (1964) and in

Avery vs. Midland County, Texas 390 U.S. 474, 88 S. Ct. 1114

(1968).

In the Niagara County referenda for the proposed Charters,

20.93% of the town voters blocked the adoption of the Char-

ter in 1972 and 22.33% of the town voters blocked the adop-

tion of the Charter in 1974 under the New York voting

scheme. In New York State, using the residence statistics con-

tained as an exhibit to the compiaint (A. 33-35) as a

——_> —_

(2 ==

11

measurement, a minority of 2% of city voters im the City of

Long Beach in Nassau County could blowk « County Charter.

Theoretically, ouc negative vote in one of the woting units

could defeat the favorable vote of the other umit of voters.

From either viewpoint, that of city voter or town voter, this

is a fencing in or fencing out of « class of voters because of

the way they may vote and ‘s waconstitutional. Carrington vs.

Rash 380 U. S. 89, 85 S. Ct. 775 (1965).

11. It is the election franchise that is the fundamental

right, entitled to provection. The perpose of the election

is secondary.

In the District Court opinion of November 22, 1974, the

Court stated that the precise issue herein appeared to be one

of first impression (A. 139).

Although prior cases may not have specifically dealt with a

referendum to decide the form or structure of local govern-

ment, the issue is that of the impact or restriction on the fran-

chise. There isno valid reason why constitutional distinctions

should be drawn on the basis of the purpose of the election.

Hadley vs. Junior College District of Metro, Kansas City 397 U.

S. 50, 54, 90 S. Ct. 791, 794 (1970). As this Court expressed

the standard in Hill vs. Stome 421 U. S. 289, 95 §. Ct. 1637

(1975):

“The basic principle expressed in these cases is thai as

long as the election in question is not one of special in-

terest, any classification restricting the franchise on

grounds other than residence. age and citizenship cannot

stand unless the district or State can demonstrate that the

classificetion serves a compelling state seterest.”

12

In Avery vs. Midland County, Texas 390 U. S. 474, 88 S. Ct.

1114 (1968), the facts involved representation in local govern-

ment and the right of the aggrieved voters to a vote of sub-

stantially equal weight to the vote of every other resident. But

the division on the Court seems to have involved a con-

sideration of the impact upon the structure of local govern-

ment. The Court specifically held:

“Our decision today is only that the Constitution imposes

one ground rule for the development of arrangements of

local government: a requirement that units with general

governmental powers over an entire geographic area not

be apportioned among single member districts of sub-

stantially unequal pepulation.” (390 U.S. at p. 485, 88

S. Ct. at P. 1121)

The County Charter form of local government constitutes a

development of an arrangement of local government. The

Court in Avery emphasized that its decision would not bar the

emergence of new structures for local governments.

That the Court in Avery recognized that its extension of the

protection of the franchise to local government would be ap-

plicable to the adoption of new forms and structures of local

government appears likely from a comparison of the majority

opinion and Justice Harlan’s dissenting opinion. The dissent

seems to predict that functional, area wide, county wide

government will not be achieved unless the barriers between

city and suburb are maintained to facilitate compromise. The

barriers and the fences have remained up another decade and

the dual box, the double majority, voting schemes have not

brought about compromises. To the contrary, they have

raised the barriers. The implementation of Fourteenth

Amendment rights, we suggest, can bring about more com-

—s

13

promise and more progress that invidiously discriminatory

dilution or debasement of equal suffrage could ever ac-

complish.

Ill. The restriction upon the franchise, justified by

the appellant to prevent encroachment by city and town

voters on one another, cannot stand.

In his brief, the appellant speaks of “importamt practical

differences between the governmental needs of these two dif-

fering types of residents.” (App. br. p. 3U). He uses the terms

home rule and protection of grass roots government from

encroachment by larger subdivisions (App. br. p. 25). What

the differences are, the appellant does not explain. What the

alleged differences are, that would not offend greviously fun-

damental constitutional rights, the record does not disclose.

His facts are wrong, if as the defender of the towns, he is

playing the role of David, because the population of the

towns in New York State exceeds the city population in 32 of

the 36 counties in New York which contain cities, although in

Niagara County the town population does not (A. 34, 35).

The word encroachment, to describe the position of the ap-

pellants, fits. Encroachment is an old English territorial word

meaning to trench, or to intrude, by invidious or gradual ad-

vances upon the territory of another. Oxford English Dic-

tionary, (1971). The fencing in or out description of restric-

tions on the franchise by this Court in sevewal earlier cases

does not seem adequate to describe the invidious

discrimination of a classification of this nature.

14

The appellant depicts New York State as consisting of cities

and towns upon which County government is to be superim-

posed by the proposed County Charter. In reality, the County

is the earliest unit of general purpose local government in

New York State. The County unit came into being in 1683. In

1777, the Counties of the State were divided into towns. 11

McKinney’s Laws of New York, County Law ps. IX et seq.,

historical note; 61 McKinney’s Laws of New York, Town

Law, ps. VII, XI Early History of Town Government.

In addition, the County Charter form of local government,

with adoption thereof to be brought about by a simple

majority of the voters of the County, has been advocated by

the mos; distinguished experts on the subject of local govern-

ment in New York State as the appropriate means of

providing effective and accountable local government in New

York State, particularly in the urban counties. Proceedings of

the 1967 Constitutional Convention of the State of New York,

Vol XII, Index P. 35, Proposed Constitution Art XI, § 1 i(1);

Debates, Proposition 1383-B, Proceedings, supra Vol. III, p.

572-607. See also the report of the New York State Temporary

State Commission on the Constitutional Convention, (1967)

Vol. 13, Local Government. The vote in favor of the

proposition providing for majority approval upon a referen-

dum for a County Charter was unanimous, Proceedings,

supra, P. 607. The proposed Constitution, which contained

numerous controversial provisions, was submitted to the elec-

torate as a single item and was defeated.

In attempting to justify the dual box voting scheme in Point

II of his brief, the appellant is inaccurate in several respects.

He contends that city voters have a majority of 10.5 million

city residents as against 7.5 million town residents in New

——e

15

York State to repeal Article 9 § 1 (h) (1). But he overlooks the

fact that this provision of the New York Constitution does not

apply to counties wholly contained ina city, which means the

five counties of the City of New York (App. br. p. 31). Ap-

proximately 8 million New York City residents should be sub-

tracted, leaving 2.5 million city residents and 7.5 million

residents of the area outside the cities, who are effected by the

double majority provision.

The appellant persists in alleging that the proposed County

Charter realigns and transfers existing governmental func-

tions and prerogatives from the towns and the cities of the

County to the proposed form of County government (App.

br. p. 32). Both the 1972 and 1974 County Charters expressly

guarantee that no function, facility, duty or power of any city

or town of the County shall be transferred, altered or im-

paired by the proposed Charters:

“No function, facility, duty or power of any city, town,

village, school district or other district or of any officer

thereof is or shall be transferred, altered or impaired by

this charter or code.” (A. 27, 73.)

IV. The dual box restriction on the franchise does not

meet the stringent test of justification; that it is necessary

to promote an articulated state goal and must constitute a

compelling state interest.

The above test was described in Kramer vs. Union Free

School District, 395 U. S. 621, 89 S. Ct. 1886 (1969) and in sub-

sequent cases. It is applicable here. Although in virtually

every case of a voting inequality or classification, the

government unit that has established a deviation from a

single unit, numerically equal voting scheme has attempted to

16

show some rational basis therefor, the appellant argues hercin

that where the voters live in the county may determine the

value of their voting franchise.

Gray vs. Sanders, 372 U. S. 368, 83 S. Ct. 801 (1963) was in-

tended to put an end to that argument with the following

language:

“Once the geographical unit for which a representative is

to be chosen is designated all who participate in the elec-

tion are to have an equal vote—whatever their race,

whatever their sex, whatever their occupation, whatever

their income, and wherever their home may be in that

geographical unit. This is required by the Equal Pro-

tection Clause of the Fourteenth Amendment. The con-

cept of “We the people’ under the Constitution visualizes

no preferred class of voters but equality among those

who meet the basic qualifications.”

Eight years later in Gordon vs. Lance, 403 U. S. 1, 4, 91 S.

Ct. 1889, 1891 (1971) the Chief Justice stated the holding in

Gray as follows:

“The defect this Court found in those cases lay in the

denial or dilution of voting power because of group

characteristics—geographic location and _ property

ownership—that bore no valid relation to the interest of

those groups in the subject matter of the election.”

The appellant having failed to demonstrate that the

classification into city voters and other than city voters, has

any basis other than to classify voters based upon where they

choose or happen to live, the classification may not stand and

the judgment oi the District Court should be affirmed.

17

V. The Sovereignty argument of the appellant is ir-

relevant.

The issue in this case is not whether a state has any

obligation to extend voter participation to units of local

government. The issue is the right of suffrage when the State

chooses to permit voter participation in local government.

Avery vs. Midland County, Texas, 390 U. S. 474, 88 S. Ct.

1114 (1968) extended the protection of the right of equal suf-

frage to the area of local government and prohibited the re-

strictions upon the franchise which the appellant defends.

The method by which the appellant attempts to extricate

himself from Gomillion vs. Lightfoot, 364 U.S. 339, 81 S. Ct.

125 (1960), after reciting that the circumvention of a federally

protected right is a limitation on state power, is ingenious but

is all semantics.

In Sailors vs. Board of Education, 387 U. S. 105, 87 S. Ct.

1549 (1967), he overlooks the fact that the state had not ex-

tended voter participation to the local government unit and

that, at least as to non-legislative local officers, the State had

the right to decide whether to appoint or elect them.

VI. The argument by appellant from previous cases,

that the dual majority scheme is not offensive to equal

protection, is not supported by those cases.

He begins his argument by urging that the New York Con-

stitution was adopted by a majority of all the voters of New

York and the New York Legislature is fairly representative of

all the people (App. br. p. 25). Such facts are immaterial to

the issue before this Court. In Lucas vs. Forty-Fourth General

Assembly of Colorado, 377 U. S. 713, 736, 84S. Ct. 1459, 1474

(1964) this Court wrote:

“A citizens constitutional rights can hardly be infringed

simply because a majority of the people choose that it

be.”

The principle was adopted in Avery vs. Midland County,

Texas, 390 U. S. 474, 481, 88 S. Ct. 1114, 1118 (1968) and in

Kramer vs. Union Free School District No. 1 395 U. S. 621, 628,

89 S. Ct. 1886, 1890 (1969).

The appellant cites Gordon vs. Lance, 403 U.S. 1, 91 S. Ct.

1889 (1971) but the reliance is misplaced. The classification of

voters into identifiable classes, city voters and other than city

voters, is the kind of classification that Gordon called dis-

criminatory. In Gordon, this court emphasized the soundness

of Gray vs. Sanders, 372 U. S. 368, 83 S. Ct. 801 (1963), and

said the defect lay in the dilution or debaseme .: of voting

power because of group characteristics, geogra, ic location

and property ownership, and the fact that votes weic discard-

ed solely because of where they were cast, all of which

violated the equal protection clause.

The appellant then calls up Dusch vs. Davis, 387 U. S. 105,

87 S. Ct. 1549 (1967) to support his argument. The Dusch

opinion, to the contrary, condemns the invidious dis-

scrimination of classifying voters based upon their race, their

sex, their economic status or their place of residence, vir-

tually all of which forms of discrimination are implicit by en-

circling the cities. The Court found no fault with requiring

district councilmen to reside in each of their seven districts,

because they were voted for citywide. They were city coun-

cilmen just as the voters of Niagara County were all county

voters and the representatives they would elect, pursuant to

the proposed County Charters, would be county officials.

19

Finally the appellant cites Salyer Land Company vs. Tulare

Lake Basin Water Storage District, 410 U. S. 719, 93 S. Ct. 1224

(1973). This is a special interest or special purpose case

wherein equal suffrage was held to be inapplicable because

the Tulare Lake Basin Water Storage District was not a unit of

general purpose government, such as Niagara County. It is,

not only, not authority for the appellant's plea, but Justice

Rehnquist in describing what is not justification for restrict-

ing the franchise, establishes the case for the conclusion that

the equal protection clause is offended by Article 9§ 1 (h)(1) of

the New York Constitution and its statutory implementation.

The dual voting box, the double majority of the New York

Constitution is an insidious restriction upon the franchise

which violates the right of equal suffrage guaranteed by the

Fourteenth Amendment and the scheme should not stand.

Vil. The remand of this Court was carried oui

properly by the District Court.

The responsibility of the District Court was to obey the

mandate of the remand. Briggs vs. Pennsylvania R. Co., 334 U.

S. 304, 68S. Ct. 1038 (1948). The decision as to the method of

proceeding was in the sound discretion of the District Court.

Epstein vs. Goldstein, 110 F. 2d. 747 (CA 2d Cir. 1940), 5A

Moore's Federal Practice, 452.13, p. 2765 (1975), 6A Moore’s

Federal Practice, 459.16 p. 59-294 (1975).

On October 8, 1975 the District Court conducted a hearing.

The 1974 Charter and the statement of the Board of Convas-

sers of Niagara County in relation to the votes cast for the

1974 County Charter were made exhibits in the record (A. 70,

128). Counsel for the appellant and counsel for all other par-

20

ties admitted the two Charters were substantially the same (A.

165). The District Court perused the two Charters (A. 165)

and made the decision that the declaration of the plaintiffs-

appellees fundamental constitutional rights should be en-

forced by ordering the 1974 Charter to be in full force and ef-

fect as the instrument defining the form of local government

for Niagara County.

The District Court properly exercised its jurisdiction pur-

suant to the remand from this Court.

The appellant’s contentions, that the District Court did not

interpret properly the remand and that the remand was solely

for the purpose of determining the issue of mootness, do not

appear to have any merit nor has such objection, if it has any

merit, been preserved adequately.

The remand appears clear by its terms and authorizes the

District Court’s action which was granted in the judgment of

December 15, 1975.

Secondly, the practice seems to be that if there is an issue of

the proper interpretation by the lower Court of a remand,

that such issue should be the subject of a clarificatory motion

in the appellate court. 6A Moore's Federal Practice, 4 59.16, p.

59-294 (1975).

Thirdly, the appellant had the opportunity and re-

sponsibility to preserve his point that the District Court had

no authority pursuant to the mandate to implement the 1974

Charter, by appealing from the District Court’s order denying

the plaintiffs-appellees’ motion to amend the amended com-

plaint. The appellant did not appeal from that portion of the

judgment of December 15, 1975. We urge that the appellant

has thereby precluded itself from questioning the decision of

the District Court to exercise jurisdiction over the 1974

County Charter.

21

VILL. Res Judicata is not a good defense.

The decision and reasoning of the District Court, that the

plaintiffs-appelices, the aggrieved class of voters in this

cause, were not parties nor in privity in the first action; that

the requirements of a class action were not met nor was it

clear they could have been met as to adequate representation

or adverseness of interest if tested; that the standing of the

County of Niagara to bring an action on behalf of an ag-

grieved class of some of its citizens and voters in a case of this

nature is not clear; is well substantiated and should not be

disturbed by this Court (A. 136-138).

In addition, the refusal of the Niagara County Legislature

upon the request of the plaintiff-appellee Shedd, to appeal

the judgment of dismissal in the prior action before it became

final, or to obtain an extension of the time to appeal to give

the plaintiff-appellee Shedd the opportunity to intervene in

the prior action, is probative on the ability of the County to

adequately represent the aggrieved voters on this issue and to

have the necessary adverseness of interest. The claim of the

appellant that the plaintiffs-appellees made no effort to ap-

peal or intervene is inaccurate (A. 134, 183-184).

On May 1, 1973, Mr. Shedd appeared before the Niagara

County Legislature and requested it to act as to protect the

constitutional rights of the citizens of Niagara County who

voted for the 1972 Charter. The County Legislature refused.

The event was reported’ in the local press on May 2, 1973 (A.

18S). The judgment of dismissal in the prior action became

final on May 3, 1973. |

22

Finally, the defense of res judicata is asserted in this Court

only by the intervenor-appellant. The appellant was not a

party to the prior action, nor do we believe that any case

could be made that it had any right of privity in that action.

The appellant has failed to demonstrate that it has any rights

stemming from the dismissal of that complaint. The appel-

lant’s non-party status in the prior action should preclude the

appellant from asserting the defense of res judicata.

IX. There is no reason for not giving the aggrieved

voters the benefit of their fundamental constitutional

rights retroactively.

From the beginning, as aggrieved voters have established the

infringement upon their fundamental constitutional right of

equal suffrage, they have been given full equitable relief.

Baker vs. Carr 369 U. S. 186, 250, 82 S. Ct. 691, 727 (1962),

Reynolds vs. Sims, 377 U.S. 533, 585, 84 S. Ct. 1362, 1393

(1964).

The cases cited by the appellant, Cipriano vs. City of Houma,

395 U. S. 701, 89 S. Ct. 1897 (1969) and Phoenix vs. Kolo-

dziejski, 399 U. S. 204, 90 S. Ct. 1990 (1970) involved bond

elections in which retroactivity would have damaged the

credibility of municipal bonds and required that the funda-

mental constitutional rights should only be applied prospec-

tively.

There is no sufficient reason for this Court not to give the

plaintiffs-appellees, the aggrieved class of voters, the full

benefit of their franchise once their fundamental con-

stitutional rights are finally established.

23

X. The mootness and jurisdiction arguments of the

appellant are irrelevant.

The remand by this Court on the subject of the 1974 Charter

became the law of the case and the antecedent events should

have no further relevance. The issue of the proper in-

terpretation of the remand by the District Court has been

discussed in Point VII herein.

There is in this portion of the appellant’s brief (IV and V)

the repeated assertion that the plaintiffs-appellees abandoned

the 1972 Charter vetween the January 9, 1975 judgment and

the October 6, 1975 remand by this Court. The assertions have

no relevancy to the legal issues herein but we believe the con-

tention should not stand unanswered.

At all times, the plaintiffs-appellees urged the District

Court and the Niagara County officials that the District

Court judgment of January 9, 1975 must be complied with and

that any deviation from it could only be with the approval of

the District Court. Finally on August 20, 1975, after the

County Clerk of Niagara County failed to comply specifically

with the District Court’s judgment, the plaintiffs-appellees

moved for further injunctive relief in furtherance of the judg-

ment of January 9, 1975 pursuant to Rule 62 (c) Federal Rules

of Civil Procedure (A. 150-160).

The foregoing may only bear upon whether the class of

aggrieved voters have at all time acted responsibly and forth-

rightly to protect and enforce their fundamental constitution-

al right of equal suffrage, but we believe that it is a principle

upon which this Court should not have a mistaken im-

pression.

24

CONCLUSION.

The judgment of the District Court granted on January

9, 1975, as reinstated and amended by the judgment

granted on December 15, 1975, should be affirmed.

Respectfully submitted,

JOHN J. PHELAN,

Attorney for Plaintiffs-Appellees

Citizens for Community Action at

the Local Level, Inc. and Francis W.

Shedd, Individually and on Behalf

of All Others Similarly Situated,

2300 Erie County Savings Bank Bidg.,

Two Main Place,

Buffalo, New York 14202.

October 1976.