Opinion
September 10, 1993
Appeal from the Supreme Court, Suffolk County (Underwood, J.).
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiffs commenced the instant action challenging the constitutionality of Local Laws, 1993, No. 12 of the County of Suffolk, which reapportioned the Suffolk County Legislature. In addition, the plaintiffs sought a preliminary injunction barring Suffolk County from instituting the reapportionment plan and from holding elections for the Suffolk County Legislature until a valid reapportionment plan was adopted.
The Supreme Court properly determined that the plaintiff Suffolk County Democratic Committee (hereinafter the Committee) lacked standing to challenge the validity of the reapportionment plan. The Committee sued on its own behalf and not on behalf of its members. Under these circumstances, the Committee failed to establish that it would suffer any threatened or actual harm as a result of reapportionment (see, Warth v Seldin, 422 U.S. 490). Furthermore, the Committee has no standing to assert a claim under the Voting Rights Act (see, 42 U.S.C. § 1973) since that statute provides a cause of action to persons whose right to vote is abridged or denied as a result of their race or color (see, 42 U.S.C. § 1973). Neither does the Committee have standing to assert a civil rights cause of action under 42 U.S.C. § 1983 since the Committee does not assert that the reapportionment plan effects an injury to its members right of association (see, Albany Welfare Rights Org. v Wyman, 493 F.2d 1319, cert denied sub. nom. Lavine v Albany Welfare Rights Org., 419 U.S. 838), nor is it representing its members' interests (see, Colorado Taxpayers Union v Romer, 750 F. Supp. 1041, appeal dismissed 963 F.2d 1394, cert denied ___ US ___, 113 S Ct 1360; Collin v Smith, 447 F. Supp. 676, affd 578 F.2d 1197, cert denied 439 U.S. 916; Socialist Workers Party v Hardy, 480 F. Supp. 941, affd 607 F.2d 704). Finally, the Committee has no standing to assert a cause of action under 42 U.S.C. § 1985 since it is not a member of a class that the statute was designed to protect (see, Bettio v Village of Northfield, 775 F. Supp. 1545; Harrison v KVAT Food Mgt., 766 F.2d 155; Rodriguez v Nazario, 719 F. Supp. 52). Since the plaintiff Baranello asserted his rights in this matter "solely as the Chairman" of the Committee, the Supreme Court properly held that, acting in that capacity, he too lacked standing.
The Supreme Court properly dismissed the cause of action under Municipal Home Rule Law § 10 (1) (a) (13). That provision does not apply to Suffolk County since the County operates under a charter form of government (see, Mehiel v County Bd. of Legislators, 175 A.D.2d 109; Matter of Ames v Smoot, 98 A.D.2d 216).
The cause of action alleging a violation of the Voting Rights Act is grounded on the assumption that the reapportionment plan improperly split minority groups among contiguous districts, thus diluting the ability of those groups to elect candidates of their choice. In order to establish a cause of action under 42 U.S.C. § 1973, the plaintiffs had to establish three threshold conditions: (1) that a minority group is sufficiently large and compact so as to constitute a majority in any one district; (2) that the group is politically cohesive; and (3) that the white majority votes sufficiently as a bloc to usually ensure the defeat of the minority's preferred candidate (see, Growe v Emison, 507 US ___, ___, 113 S Ct 1075, 1084). In the instant case, the complaint contains only conclusory allegations as to these three threshold criteria and is utterly devoid of any factual support. Thus, the Supreme Court properly dismissed this cause of action (see, Elsky v KM Ins. Brokers, 139 A.D.2d 691).
The Supreme Court also properly dismissed the cause of action alleging a violation of the Civil Rights Act because the complaint did not contain any allegations that the reapportionment plan was instituted pursuant to an "official policy or custom" (Katz v Morgenthau, 709 F. Supp. 1219, 1228; see also, Monell v New York City Dept. of Social Servs., 436 U.S. 658) or that the defendants harbored a "`class-based invidious discriminatory animus'" against any particular group of individuals and "that this prejudice motivated the alleged wrongful conduct against the plaintiffs" (Nicoleau v Brookhaven Mem. Hosp. Ctr., 181 A.D.2d 815, 817; see also, Gleason v McBride, 869 F.2d 688, 695).
Finally, the plaintiffs argue that the Supreme Court erred when it denied their application for a preliminary injunction after they had established a prima facie case on their equal protection cause of action. We agree with the Supreme Court that the reapportionment plan is constitutionally suspect because of the alleged 20.85% deviation from population equality between the most over-represented and most under-represented districts (see, Reynolds v Sims, 377 U.S. 533; Swann v Adams, 385 U.S. 440). That is not to say, however, that the reapportionment plan is per se invalid (see, Brown v Thompson, 462 U.S. 835 [upholding reapportionment plan where the total deviation from population equality was 89%]). As long as the defendants can demonstrate that the population inequalities are based on "legitimate considerations incident to the effectuation of a rational [county] policy", the plan will pass constitutional muster (Reynolds v Sims, supra, at 579). Moreover, local governments have been given greater discretion in creating legislative districts with population deviations, than has been afforded the States in reapportioning their own Legislatures or congressional districts (see, Abate v Mundt, 25 N.Y.2d 309, affd 403 U.S. 182). Under these circumstances, the remaining plaintiffs have failed to show that they are likely to succeed on the merits of their equal protection claim. Thus, the Supreme Court properly refused to grant a preliminary injunction (see, McLaughlin v Nolan, 114 A.D.2d 165; Matter of Schwartz v Rockefeller, 38 A.D.2d 995). Mangano, P.J., Balletta, Eiber and Ritter, JJ., concur.