Jones v. Deutsch Plaintiffs' Memorandum in Opposition to Motions to Dismiss or, Alternatively, for Summary Judgement and for Attorneys' Fees and Sanctions

    UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

X

YVONNE JONES, et al.,
Plaintiffs,

-against-
LAURENCE DEUTSCH, et al. ,

Defendants.
x

88 Civ. 7738 (GLG)

PLAINTIFFS' MEMORANDUM IN OPPOSITION 
TO MOTIONS TO DISMISS OR, 

ALTERNATIVELY, FOR SUMMARY JUDGMENT 
AND FOR ATTORNEYS' FEES AND SANCTIONS

PAUL, WEISS, RIFKIND,
WHARTON & GARRISON 
1285 Avenue of the Americas 
New York, N.Y. 10019 
(212) 373-3000
Attorneys for the Homeless 
Plaintiffs and the National 
Coalition and Local Counsel 
for the Greenburgh Plaintiffs 
and the NAACP
Of Counsel:

Cameron Clark 
Jay L. Himes 
Melinda S. Levine 
William N. Gerson

Julius L. Chambers, Esq. 
John Charles Boger, Esq. 
Sherrilyn Ifill, Esq.
99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

GROVER G. HANKINS, ESQ. 
NAACP, Inc.
4805 Mount Hope Drive 
Baltimore, MD 21215-3297 
(301) 485-9191

Attorney for the Greenburgh 
Plaintiffs and the NAACP

Robert M. Hayes, Esq. 
Virginia G. Shubert, Esq. 
COALITION FOR THE HOMELESS 
105 East 22nd Street 
New York, N.Y. 10010 
(212) 460-8110

Andrew M. Cuomo, Esq. 
2 Park Avenue 
Suite 1415
New York, N.Y. 10016 
(212) 686-1000



Table of Contents

Page

Table of Abbreviations..................................  iii
Preliminary Statement .............................. . i
Statement of Facts ...................................... 4

The Parties ........................................  4
The West HELP Shelter .............................  6
The Conspiracy Forms ..............................  7
The Proposed Village ..............................  7
Supervisor Veteran's Decision ....................  9
Plaintiffs* Complaint .............................  11
The Pending Motions ...............................  13

Argument ................................................. 14
I A CLAIM FOR DECLARATORY RELIEF IS STATED.......... 15

II SECESSION IS NOT CONSTITUTIONALLY PROTECTED
UNDER THE FIRST AMENDMENT ........    17
A. The Secessionist Plan is Actionable.... . 18
B. The Conspiracy Provisions of § 1985(3)

Reach the Moving Defendants' Conduct .......  21
C. The First Amendment Cases That Defendants

Rely On Are Inapplicable ....................  2 8
III THERE IS A JUSTICIABLE CONTROVERSY ...............  32
IV PLAINTIFFS HAVE STANDING TO SUE ..................  3 7

A. The Threat of Injury Is Sufficient .......... 37

(i)



Page

B. The Greenburgh Plaintiffs ...................  41
C. The Homeless Plaintiffs .....................  43
D. The Organizational Plaintiffs  ......... 45
E. Warth v. Seldin Is Inapplicable ............. 48

V A CLAIM IS PLEADED AGAINST DEFENDANT KAUFMAN ..... 49
Conclusion ............................... ............... 53

(ii)



Table of Abbreviations
Complaint Complaint, filed 

November 1, 1988.
Papers in Support of Motions
Def. Mem. Memorandum on Behalf of 

Defendants Deutsch, Tone, 
Goldrich, and Coalition of 
United Peoples, Inc. in Support 
of Motion to Dismiss, and for 
an Award of Sanctions and 
Reasonable Attorney's Fees, 
dated December 12, 1988.

Kauf. Mem. Memorandum on Behalf of 
Defendant Colin Edwin 
Kaufman in Support of 
Cross-Motion, Joining in 
Motion of Co-defendants to 
Dismiss, for Reasonable 
Attorneys' Fees and for an 
Award or Sanctions and 
Additionally Moving for 
Summary Judgment, dated 
December 19, 1988.

Kauf. Aff. Affidavit of Colin Edwin 
Kaufman, sworn to December 19, 
1988.

Papers in Opposition to Motions
Dixon Aff. Affidavit of Melvin Dixon, 

sworn to January 24, 1989.
Himes Aff. Affidavit of Jay L. Himes, 

sworn to January 25, 1989.
Hombs Decl. Declaration of Mary Ellen 

Hombs, dated January 25, 1989.
Jones Aff. Affidavit of Yvonne Jones, 

sworn to January 24, 1989.
Jordan Decl. Declaration of Anita Jordan 

dated January 25, 1989.
Myers Decl. Declaration of Thomas Myers, 

dated January 25, 1989.

(iii)



UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

X

YVONNE JONES, et al., :
Plaintiffs, : 88 Civ. 7738 (GLG)

-against- :
LAURENCE DEUTSCH, et al.. :

Defendants. :
x

PLAINTIFFS' MEMORANDUM IN OPPOSITION 
TO MOTIONS TO DISMISS OR,

ALTERNATIVELY, FOR SUMMARY JUDGMENT 
AND FOR ATTORNEYS' FEES AND SANCTIONS

Defendants Deutsch, Tone, Goldrich and Coalition of 
United Peoples, Inc. ("COUP") have moved to dismiss the 
complaint pursuant to Rule 12(b)(6). Defendant Kaufman has 
filed a separate cross-motion to dismiss or, alternatively, 
for summary judgment under Rule 56. All movants also seek an 
award of attorneys' fees and sanctions under Rule 11 and 
42 U.S.C. § 1988. Both motions should be denied in all 
respects.

Preliminary Statement
This case arises out of a proposal by the County of 

Westchester and the Town of Greenburgh to build housing for 
homeless families with children. These families are 
overwhelmingly members of racial minorities. Community



2

resistance to the proposal includes an effort, led by the 
Moving Defendants, to assume control of the development site 
by incorporating a new village. As defendant Deutsch —  a 
leading proponent of the new village —  has said: "We'll
secede and take a nice piece of the tax base with us."

Before the secession could proceed, however, state 
law required that the Supervisor of the Town of Greenburgh, 
defendant Anthony Veteran, consider the matter. After 
studying the proposed village map and holding a hearing,
Mr. Veteran concluded:

In the entire 30 years during which I have held elective 
office I have never seen such a blatant and calculated 
attempt to discriminate. The boundaries repeatedly 
deviate from a natural course solely to exclude individual 
properties where blacks live.

For this and other reasons, Mr. Veteran rejected the 
attempt to secede. The Moving Defendants' co-secessionists 
are trying to overturn that decision in an Article 78 pro­
ceeding.

This federal action challenges the secessionist 
movement directly —  as a conspiracy to violate the civil 
rights of plaintiffs, community blacks and homeless persons, 
and two corresponding organizations, the National Association 
for the Advancement of Colored People, Inc./White Plains- 
Greenburgh Branch and the National Coalition for the 
Homeless.



3

Defendants Deutsch, Tone, Goldrich, Kaufman and 
COUP (the "Moving Defendants") seek dismissal. Their primary 
argument is that they have an absolute privilege under the 
First Amendment to try to form a racially discriminatory 
village as a means to scuttle a government effort to extend 
equal protection of the laws to the homeless. The Constitution, 
however, confers no such privilege.

Secession is action —  not speech -- and it is not 
protected by the First Amendment. The collective effort to 
create a segregated enclave of local government is unlawful, 
pure and simple. So too is the collective effort to form a 
village for the purpose of blocking a government effort to 
discharge constitutional and statutory obligations to the 
homeless. This court may grant appropriate relief here —  

just as other federal courts have enjoined secessionist plans 
in the past, and just as other federal courts have enjoined 
voter ballot measures which, if approved, would be 
unconstitutional.

The Moving Defendants' other grounds for dismissal 
are equally devoid of merit. They contend that there is no 
justiciable controversy because the new village is not yet 
formed. This argument is wide of the mark: the scheme to
form the village is actionable.

The Moving Defendants further argue that plaintiffs 
lack standing to sue. That contention also fails.



4

Plaintiffs are directly affected by the secessionist 
movement. They clearly have standing.

Thus, the motions to dismiss or (as to defendant 
Kaufman) for summary judgment should be denied. Since the 
basic motions fail, the applications for attorneys' fees and 
sanctions dissolve.

Statement of Facts
We describe below the parties to this lawsuit and 

the background facts from which it arises, as pleaded in the 
complaint. Then, we will summarize the civil rights conspiracy 
claims alleged, and the motions to dismiss.

The Parties
The 20 plaintiffs consist of homeless persons, 

black homeowner/residents of the Town of Greenburgh, the 
National Coalition for the Homeless, and the National 
Association for the Advancement of Colored People, Inc./White 
Plains-Greenburgh Branch (the "National Coalition" and 
"NAACP," respectively).

Plaintiffs Jordan, Ramos, T. Myers, L. Myers and 
their children (the "Homeless Plaintiffs") are three 
Westchester County homeless families —  the type of persons 
who would be eligible for placement in the housing facilities 
that the Moving Defendants are seeking to block. (Complaint 
It 5a-c, 14-17.) Plaintiffs Y. Jones, 0. Jones, Bacon,



5

Hodges, Wilson and Dixon (the "Greenburgh Plaintiffs") are 
black Greenburgh community homeowners. All the Greenburgh 
Plaintiffs reside in the vicinity of, but outside, the 
proposed Mayfair Knollwood boundaries, except for Mr. Dixon. 
He resides inside the proposed village. (Id. %% 5d-i.)

The National Coalition is a not-for-profit 
corporation whose primary purpose is to advocate responsible 
solutions to end homelessness. The National Coalition 
provides direct assistance to homeless people in the form of 
informational services, rent subsidies, food and legal 
counsel. (Id. % 5k.)

The NAACP is of course well known. It is a non­
profit membership organization that represents the interests 
of approximately 500,000 members in 1,800 branches throughout 
the country. The NAACP has worked through the courts since 
1909 to establish and protect the civil rights of minority 
citizens. It sues here through its White Plains/Greenburgh 
branch. (Id. f 5j .)

The Moving Defendants are four individuals and a 
New York not-for-profit corporation, COUP, formed by 
defendant Deutsch and others to stop the homeless housing 
development. Defendants Deutsch, Kaufman, Goldrich, and Tone 
reside within the boundaries of the proposed village, near 
the housing site. (Id̂ . 6, 7.)



6

The sixth defendant is Anthony Veteran, the 
Supervisor of the Town of Greenburgh. As will become clear 
below, Mr. Veteran is a party for the purposes of declaratory 
relief. (Id. 8, 31-38, 60-63.) Plaintiffs do not contend 
that he has conspired to violate their civil rights.

The West HELP Shelter
Westchester County is teeming with homeless 

families. Many currently are quartered at great public 
expense in often squalid motel rooms. Typically, a single 
room houses a parent and a number of children. The vast 
majority of the County's homeless are members of racial 
minorities. fid. 2, 13, 14, 20.)

In January 1988, the Town of Greenburgh proposed to 
build housing for 108 homeless families with children on land 
within the Town owned by Westchester County. The proposed 
developer is West H.E.L.P., Inc. ("West HELP"), a not-for- 
profit corporation that constructs housing for the homeless. 
The intent of the West HELP development is to provide safe, 
convenient and humane emergency (or "transitional") shelter 
for homeless families with children. It is part of a joint 
County/West HELP proposal to establish a number of such 
facilities. (Ids. fl 15-17.)



7

The Conspiracy Forms
Announcement of the West HELP shelter in late 1987 

galvanized neighborhood resistance. In February 1988, 
defendant Deutsch and others formed COUP, whose purpose is to 
stop the project. Around the same time, Deutsch publicly 
announced that he and other Town residents intended to 
accomplish that objective by incorporating a new village —  
later named "Mayfair Knollwood" —  pursuant to the New York 
Village Law. fid, ff 21-22.)

Deutsch and his co-conspirators propose to use the
new governmental unit of Mayfair Knollwood to block the West
HELP development. As Deutsch has said:

We'll go ahead with secession and take a nice piece of 
taxable property with us.

The "secession" plan is racially motivated. Deutsch stated
in opposing the West HELP development:

You're taking a piece of a ghetto and dumping it 
somewhere else to get another ghetto started.
(IcL. 1 23.)

Thereafter, the Moving Defendants prepared and 
circulated a petition to incorporate Mayfair Knollwood.
(ld,_ 24-25.) The secessionist scheme was underway.

The Proposed Village
The map of Mayfair Knollwood is ugly indeed. The 

boundary of the proposed village is irregular and



8

ungeometric; it has more than 30 sides. The proposed village 
would exclude all the black and multi-racial housing sur­
rounding it. The tortured shape of the village can be 
explained only by the purpose of its creators —  to exclude 
racial minorities. fid.  ̂ 26 and Ex. 1.)

Within the proposed village is the West HELP 
development site —  so that the newly formed government will 
be able to seize control and try to halt construction. The 
proposed village also includes a disproportionate amount of 
the Town's tax base and recreational facilities. Moreover, 
the boundary extends outward to include all the undeveloped 
land that borders the excluded surrounding minority 
neighborhoods —  thus assuring the power to create a buffer 
zone against possible encroachment from excluded communities 
through control of land use. fid. 27-28.)

In September 1988, after hundreds of residents had 
signed the incorporation petition, the secessionists pre­
sented it to Supervisor Veteran. Under State law, Mr. Veteran 
then had the responsibility of calling a hearing, receiving 
objections and rendering a decision on whether the incorpora­
tion procedure could move ahead. A favorable decision would 
clear the way for a vote by the Mayfair Knollwood residents 
on whether to secede. fid, 30-32; N.Y. Village L. § 2-212 
(McKinney 1973).) Because of the proposed village's compo­
sition —  resulting, of course, from its gerrymandered



9

borders —  the outcome of such a vote was a foregone
conclusion. Thus, defendant Deutsch triumphantly announced:

The incorporation is a fact. . . . The town may delay 
us, but it won't stop us. There is nothing that the 
town or county could do which could divert us from the 
incorporation. (Complaint f 30.)

. . 1/Supervisor Veteran's Decision-7
Town Supervisor Veteran held the required hearing. 

On December 6, 1988, he filed his decision rejecting the 
incorporation petition on several grounds. (Himes Aff.,
Ex. A.) One ground was race discrimination. Mr. Veteran 
found that the Mayfair Knollwood boundaries "were 
gerrymandered in a manner to exclude black persons from the 
proposed village." (Id. at 2.) We repeat Mr. Veteran's 
dramatic words:

In the entire 30 years during which I have held elective 
office I have never seen such a blatant and calculated 
attempt to discriminate. The boundaries repeatedly 
deviate from a natural course solely to exclude 
individual properties where blacks live. Within the 
boundaries of the proposed village there is not a single 
unit of multi-family housing, housing which historically 
has been more accessible to minority groups because of 
its lower cost. (Id. at 2-3.)

1/ The Veteran decision post-dates the filing of
plaintiffs' complaint. The Moving Defendants have 
submitted it on this motion, however, and plaintiffs are 
cross-moving for leave to file an amended and 
supplemental complaint containing updating allegations 
concerning the decision.



10

Recognizing that "[t]he procedures for the 
formation of a new village cannot be used to accomplish an 
unlawful end," Mr. Veteran concluded that his obligation was 
"to defend the constitution and to reject the 
petition. . . . "  fid, at 4.)

Mr. Veteran also rejected the petition because "the 
new village was proposed for the sole purpose of preventing 
the construction of transitional housing for homeless 
families near the neighborhood of Mayfair Knollwood." fId.) 
Again, Mr. Veteran concluded that his duty to defend the 
constitution dictated that he reject the petition because 
"its purpose is to deny homeless persons needed services, to 
exclude homeless persons, and to racially discriminate

2 /against homeless persons who are predominantly black."~y 
fid, at 7.)

The Moving Defendants' co-secessionists filed suit 
in state court in December 1988 in an effort to overturn the 
Veteran decision. (Himes Aff., Ex. B.) Town Supervisor 
Veteran, joined by plaintiffs here and others, removed the

V  Mr. Veteran found also that the petition breached the
Village Law in several respects and rejected it on those 
grounds as well.



11

suit to this Court, pursuant to 28 U.S.C. §§ 1441(b) and 
1443 (2) .

Plaintiffs* Complaint
Plaintiffs filed their complaint on November 1, 

1988. Four counts are alleged. Three are grounded in 
42 U.S.C. § 1985 (1982), the civil rights conspiracy statute. 
The fourth count seeks a declaratory judgment.

The three conspiracy counts are based on the 
following statutes, which establish the substantive rights 
that the Moving Defendants conspired to abridge:

Count I:__Voting Rights Conspiracy: Both federal
and state law prohibit denying or abridging the right to vote 
on account of race. U.S. Const, amend. XV? N.Y. Const, 
art. I, §§ l and 11; 42 U.S.C. § 1973 (1982); N.Y. Civil 
Rights L. §§ 40-c(l) & (2) (McKinney Supp. 1988).

Count II: Housing Rights Conspiracy; Both federal
and state law prohibit discrimination in housing on account 
of race. U.S. Const, amend. XIV; N.Y. Const, art. I, § n  

and art. XVII, § 1; 42 U.S.C. §3604 (1982)? N.Y. Civil Rights 
L. § 40-c(1) & (2) and N.Y. Exec. L. § 291(2) (McKinney 
1982) .

Count III: Shelter Rights Conspiracy: Both
federal and state law guarantee safe and lawful emergency 
shelter. U.S. Const, amend. XIV; N.Y. Const, art. I, § 11



12

and art. XVII, § 1; 42 U.S.C.A. §§ 601 and 602 (West 1983 & 
Supp. 1988)

As to each of these three counts, plaintiffs allege
that the Moving Defendants' conduct constitutes a conspiracy
in violation of both the "deprivation" and the "preventing or
hindering" provisions of 42 U.S.C. § 1985(3). In pertinent
part, § 1985(3) provides that:

If two or more persons in any State or Territory 
conspire . . . for the purpose of depriving, either
directly or indirectly, any person or class of persons 
of the equal protection of the laws, or of equal 
privileges and immunities under the laws; or for the 
purpose of preventing or hindering the constituted 
authorities of any state or territory from giving or 
securing to all persons within such State or Territory 
the equal protection of the laws . . ., in any case or 
conspiracy set forth in this section, if one or more 
persons engaged therein do, or cause to be done, any act 
in furtherance of such conspiracy, whereby another is 
injured in his person or property, or deprived of having 
and exercising any right or privilege of a citizen of 
the United States, the party so injured or deprived may 
have an action for the recovery of damages . . . .

Briefly, the Moving Defendants' acts give rise to a 
claim because: (1) they deny plaintiffs the enjoyment of the
rights set forth, a violation of the "deprivation" clause; 
and (2) they impede the County and Town's efforts to 
discharge their corresponding obligations to plaintiffs, a

1/ The complaint inadvertently refers to 42 U.S.C. §§ 301 
et sea. That reference is incorrect. It is corrected 
in the proposed amended and supplemental complaint.



13

violation of the "preventing or hindering" clause. (Com­
plaint <ff 51-53.)

The class-based focus required for a § 1985(3) 
claim is present in two respects. First, the voting rights 
branch of the conspiracy impairs the rights of the Greenburgh 
Plaintiffs, black community residents. Second, the housing 
and shelter rights branches of the conspiracy impair the 
rights of the Homeless Plaintiffs, two of whom are black and 
thus typical of the County's homeless population, which 
consists overwhelmingly of racial minorities. (Id. f 20.)

On each of the conspiracy counts, plaintiffs seek 
judgment enjoining the conspiracy, and awarding damages, 
attorneys' fees and costs. (Id. pp. 22-23.)

Count IV pleads a claim for declaratory relief. 
Plaintiffs seek a determination that, in discharge of his 
oath of office, defendant Veteran had the right and 
obligation to reject the Mayfair Knollwood petition. (Id.
H  31-38, 61-63.)

The Pending Motions
Defendants Deutsch, Tone, Goldrich and COUP served 

a motion to dismiss in mid-December 1988. Defendant Kaufman 
joined the motion and also moved for summary judgment, based 
on a letter that he wrote to a local legislator in January 
1988. (Kaufman Aff., Ex. A.)



14

The Moving Defendants do not argue that the 
complaint fails to plead the necessary elements of a 
§ 1985(3) claim. Instead, they assert that the statute 
should not be applied to their conduct because, they say, the 
First Amendment offers absolute immunity. They also claim 
that there is no case or controversy and that plaintiffs lack 
standing to sue. Defendant Kaufman adds an argument that his 
participation in the conspiracy has not been shown.

Finally, the Moving Defendants have thrown in a 
motion for attorneys' fees and Rule 11 sanctions —  an 
increasingly common ancillary application whenever a motion 
to dismiss is made.

Argument
There is no basis for granting dismissal because 

claims are pleaded against all the Moving Defendants. We 
show first that a claim for declaratory relief is stated. 
Then, we address the § 1985(3) conspiracy claims. We will 
demonstrate that there is no merit to the Moving Defendants' 
First Amendment, justiciability and standing arguments.
Last, we address the separate argument by defendant Kaufman; 
as will be seen, his participation in the conspiracy is 
adequately alleged and issues of fact preclude summary 
judgment.



15

A CLAIM FOR DECLARATORY 
RELIEF IS STATED

The Moving Defendants apparently think that they 
can wish away the declaratory claim in the complaint by 
ignoring it in their moving papers. The claim will not go 
away; the Moving Defendants' invocation of the Village Law to 
form a segregated government unit and, now, Town Supervisor 
Veteran's decision rejecting their action raise an actual 
controversy suitable for resolution by declaratory judgment.

Plaintiffs seek a determination that Supervisor 
Veteran had the right and obligation to consider the 
constitutional and statutory issues presented by the proposal 
to incorporate Mayfair Knollwood. By virtue of his oath of 
office to support and defend the federal and state 
constitutions, Mr. Veteran was precluded from rendering a 
favorable decision when presented with an unlawful 
incorporation petition. Thus, plaintiffs maintain, he acted 
properly in rejecting the petition. Supervisor Veteran 
obeyed the law. Cf. Brewer v. Hoxie School District No. 46, 
238 F .2d 91 (8th Cir. 1956) (school district and its 
officials had duty to insure desegregation in the face of 
community opposition); Matter of Fossella v. Dinkins,
66 N .Y .2d 162, 485 N.E.2d 1017, 495 N.Y.S.2d 352 (1985)
(ballot measure removed because it violated state law).

I



16

The Moving Defendants take a different view. They 
insist that the literal language of § 2-206 of the New York 
Village Law constrained Mr. Veteran. That law does not, in 
its express terms, identify constitutional and statutory 
prohibitions and obligations as grounds for rejecting an 
incorporation petition. See N.Y. Village L. §§ 2-206 and 
2-208 (McKinney 1973 & Supp. 1988). In consequence, on the 
Moving Defendants' theory, Mr. Veteran was obligated to blind 
himself to the unlawful petition submitted to him. By fail­
ing to do so —  by acting in accordance with his oath of 
office —  Mr. Veteran, so the argument goes, acted improp­
erly. (Complaint % 36; Himes Aff., Ex. B 44-46, 52-54.)

This is a classic declaratory judgment situation. 
The issue presented is what the law permitted or required 
Supervisor Veteran to do. The case easily satisfies the 
standards for a declaratory judgment claim that the Supreme 
Court established long ago;

The controversy must be definite and concrete, touching 
the legal relations of parties having adverse legal 
interests . . . .  It must be a real and substantial 
controversy admitting of specific relief through a 
decree of conclusive character, as distinguished from an 
opinion advising what the law would be on a hypothetical 
state of facts . . . .  [A] negations that irreparable
injury is threatened are not required. Aetna Life Ins. 
Co. v. Haworth. 300 U.S. 227, 240-41 (1937) (citations 
omitted).

The controversy at bar is "definite and concrete," 
"real and substantial." Plaintiffs seek a determination of



17

Mr. Veteran's right and obligation to reject the petition 
that defendant Deutsch and others presented to him in 
September 1988. Whether Mr. Veteran acted properly raises no 
First Amendment issue, and no question of justiciability or 
standing.

The Mayfair Knollwood proponents' own Article 78 
proceeding to upset Mr. Veteran's decision demonstrates that 
a claim is pleaded here. In that case, the secessionists 
seek to disable Mr. Veteran from taking constitutional (or 
statutory) constraints into account. (See Himes Aff., Ex. B, 
!1 44-46, 52-54.)

The claim in the Article 78 proceeding and the one 
here are two sides of the same coin. Thus, the Moving Defen­
dants hardly can be heard to argue that plaintiffs have 
failed to state a claim for declaratory relief.-^

II
SECESSION IS NOT CONSTITUTIONALLY PROTECTED 
_____ UNDER THE FIRST AMENDMENT______________
The Moving Defendants argue that their conduct is 

absolutely privileged under the First Amendment. (Def.

1/ The declaratory judgment claim has an independent
federal question jurisdictional basis under 28 U.S.C. 
§ 1331 because Article VI, els. 2 and 3 of the United 
States Constitution obligate Supervisor Veteran to 
support and defend the constitution. (See Complaint 
IH 3, 62-63.)



18

Mem. 6-8.) This argument ignores that the Moving Defendants 
are not charged with mere advocacy of a position or the 
public expression of views on an issue of community importance 
By joining together and taking action in pursuit of a seces­
sionist plan to create a new village with racially discrimi­
natory boundaries as a means to block government assistance 
to the homeless, the Moving Defendants have gone beyond 
advocacy and expression. Their conduct gives rise to a claim 
under the civil rights conspiracy statute, 42 U.S.C. § 1985(3) 

We will show first that the secessionist plan is 
actionable and that § 1985(3) affords a remedy. After that, 
we shall discuss the authorities that the Moving Defendants 
rely on, none of which sustains a First Amendment privilege 
here.

A. The Secessionist Plan is Actionable
This is not the first time that community residents 

have tried to secede in response to local government efforts 
to extend the equal protection of the laws to disadvantaged 
classes. There were similar attempts in response to school 
desegregation —  and the courts repeatedly stopped them.

Burleson v. County Board of Election Commissioners 
of Jefferson County. 308 F. Supp. 352 (E.D. Ark. 1970), aff 'd 
per curiam. 432 F.2d 1356 (8th Cir. 1970), is illustrative. 
There, a school district was under a desegregation order. 
Residents in a particular geographic area circulated a



19

petition to withdraw from the district under the procedures 
authorized by state law. The district court held that the 
withdrawal "will frustrate the Court's decrees and will 
impede the District in carrying out its [desegregation] 
obligations." 308 F. Supp. at 357. Thus, the court 
concluded:

[T]he proposed secession cannot be permitted and will be enjoined. 308 F. Supp. at 358.
The Eighth Circuit affirmed.

The Fifth Circuit stopped a similar secession in 
v - Macon County Board of Education. 448 F.2d 746 (5th 

Cir. 1971). The Supreme Court eventually confirmed that 
secession to avoid desegregation would not be tolerated. 
Height v. Council of the City of Emporia. 407 U.S. 451
(1972) ; Cotton v. Scotland Neck City Board of Education. 407 
U.S. 484 (1972).

The facts here are analogous. The County and the 
Town have determined that the West HELP shelter is needed to 
extend the equal protection of the laws to homeless families 
with children —  just as the courts and the Justice 
Department determined that school desegregation plans were 
needed to extend equal protection to black school children.
As detailed in the complaint, the Homeless Plaintiffs have 
protections under federal and state laws, and the West HELP 
shelter is the County and Town's chosen means to extend those



20

protections to the homeless under these provisions.
(Complaint m  15-17, 39-50.) The Moving Defendants may no 
more secede in response to that decision than could community 
residents try to carve out new school districts to avoid 
desegregation.

The secessionist proposal to create Mayfair 
Knollwood is actionable for a second reason: the Moving
Defendants have used race to gerrymander the proposed village 
boundaries, thus violating the Gomillion principle.

In Gomillion v. Liahtfoot. 364 U.S. 339 (1960), the 
City of Tuskegee reshaped its borders from a square to a 
28-sided figure (roughly comparable to the more than 30-sided 
Mayfair Knollwood border). The effect was to form a 
virtually all white enclave, leaving the former city's blacks 
on the outside looking in. Because the boundary change 
deprived blacks of their pre-existing right to vote on city 
affairs, the Supreme Court held that there was a Fifteenth 
Amendment violation.

The Gomillion Court emphasized that "[a]cts 
generally lawful may be unlawful when done to accomplish an 
unlawful end . . . ." Id. at 347, quoting Western Union 
Telegraph Co. v. Foster. 247 U.S. 105, 114 (1918). Thus, the 
case confirms that neutral mechanisms of state law may not be 
used to form a segregated local government enclave. As 
alleged in the complaint here, however, the Moving Defendants



seek to do just that. The Mayfair Rnollwood proposal 
excludes blacks from the proposed village. (Complaint 
11 26-28.)

These allegations must be deemed true for purposes 
of this motion. Indeed, the Moving Defendants do not even 
try to deny them. Moreover, Mr. Veteran reached the same 
conclusion —  that the boundaries were unlawfully 
gerrymandered. (Himes Aff., Ex. A.)

In summary, these authorities demonstrate that the 
Moving Defendants' secessionist plan is actionable.

B. The Conspiracy Provisions of § 1985(3)
Reach the Moving Defendants' Conduct

This case differs from Gomillion and the earlier 
secession cases in only one respect. Here, Town Supervisor 
Veteran stood his constitutional ground. Instead of joining 
the secession, or simply submitting the Mayfair Knollwood 
proposal to a vote by the proposed village residents,
Mr. Veteran discharged his constitutional duty and rejected 
the incorporation petition. In such circumstances, it is 
questionable whether a private right of action to challenge 
the secessionist scheme exists under either the Fourteenth or 
Fifteenth Amendments, or 42 U.S.C. § 1983. All these 
provisions require state action. However, the civil rights 
conspiracy statute —  42 U.S.C. § 1985 —  fills the gap 
because no state action is required to plead claims for



22

relief. See. e.g. , Griffin v. Breckenridqe, 403 U.S. 88 
(1971); Weise v. Syracuse University, 522 F.2d 397, 408 
(2d Cir. 1975); Action v. Gannon. 450 F.2d 1227 (8th Cir.
1971) (en banc); Perry v. Manocherian, 675 F. Supp 1417, 1428 
(S.D.N.Y. 1987).

The Moving Defendants do not contend that there has 
been a failure to plead the elements of a § 1985(3) claim; 
nor could they. That question was decided against them in 
People of the State of New York v. 11 Cornwell Co.. 508 
F. Supp. 273 (E.D.N.Y. 1981), aff'd. 695 F.2d 34 (2d Cir. 
1982), modified. 718 F.2d 22 (2d Cir. 1983) (en banc).

In 11 Cornwell, the State sought to purchase 
property for use as a facility for the mentally retarded. 
Neighborhood residents banded together and bought the 
property to prevent the State from doing so. The State filed 
a § 1985(3) action, claiming both "deprivation" and 
"preventing or hindering" violations.

Defendants moved to dismiss for failure to state a 
claim. The district court denied the motion. The court held 
that the complaint adequately alleged a duty on the part of 
the State to secure housing, as an alternative to 
institutionalization, for the mentally retarded.
508 F. Supp. at 276. The court noted that the crux of the 
complaint was the allegation of "a conspiracy to prevent [the 
state agency] from purchasing the property at 11 Cornwell



23

Street for the purpose of keeping an 'undesirable' class of
persons from living there." Id. The court concluded that
plaintiffs had stated a claim:

If defendants have prevented or hindered the state from 
buying the home for the reasons alleged by plaintiff, 
they have therefore violated § 1985(3) and plaintiff is 
entitled to relief appropriate to the circumstances, 
including compensatory and punitive damages, for the 
harm suffered. Id.

The case came before the Second Circuit after a
trial in which the district court entered judgment for
plaintiffs on the basis of a state law claim. The court of
appeals, however, passed on the substantiality of the federal
§ 1985(3) claim (thereby establishing jurisdiction to
adjudicate the state claim). The court had no difficulty
upholding the trial court's decision:

[B]oth the nature of 11 Cornwell's conduct and the class 
basis of the discrimination complained of are sufficient 
to make out a colorable claim that 11 Cornwell prevented 
or hindered the State from providing the mentally 
retarded with 'equal protection of the laws' within the 
meaning of Section 1985(3). 695 F.2d at 43.—'

The complaint here is analogous to the one 
sustained in 11 Cornwell. That case arose from a government 
effort to discharge a duty to furnish housing to the mentally 
retarded; this case arises from a comparable government duty

5/ Neither the district court nor the Second Circuit
reached the question whether a § 1985(3) "deprivation" 
claim was stated.



24

to the homeless, owed under both federal and state law, to 
provide housing and shelter on a non-discriminatory basis. 
(Complaint ff 38-48.) In 11 Cornwell, in an effort to keep 
out an "undesirable class," defendants implemented a scheme 
to buy the property intended for the mentally retarded.
Here, the Moving Defendants are more ambitious: they schemed
to form a secessionist government in order to secure legal 
control over the development site. (Complaint 21-23.)
The salient point is the same in both cases: defendants
conspired to prevent or hinder state authorities from 
discharging their legal obligations. (Id. 21-30.) See 
11 Cornwell, supra. 695 F.2d at 39 ("The analogy to racial 
discrimination is close indeed").

As in 11 Cornwell, the Moving Defendants' conduct 
is actionable. The Homeless Plaintiffs, members of the 
intended group of beneficiaries of the government effort to 
extend shelter, and the National Coalition, may sue to remove 
the obstacle put up to prevent or hinder the West HELP 
development. They also may sue because the Moving 
Defendants' conspiracy includes the purpose of depriving them 
of the equal protection of the laws. Compare Brewer v. Hoxie 
School District No. 46. 238 F.2d 91 (8th Cir. 1956) (school



25

officials could bring § 1985(3) claim against persons who 
impeded desegregation effort)

Moreover, here, there is not only a claim of 
conspiracy directed at the housing/shelter rights of homeless 
persons, but also additional § 1985(3) conspiracy claims.

Mayfair Knollwood, if incorporated, would transform 
the racially integrated community of the Town of Greenburgh 
into a Town and a Village, the latter a white enclave. Town 
blacks outside Mayfair Knollwood would be deprived of their 
right to vote on matters affecting the Mayfair Knollwood

6/ The Moving Defendants make an inelegant attempt to argue 
that § 1985(3) does not apply because their 
discriminatory conduct is based on the economic status 
of the homeless. (Def. Mem. 15-16.) See United 
Brotherhood of Carpenters & Joiners v. Scott, 463 
U.S. 825 (1983) (declining to apply § 1985 to a labor 
dispute). This argument misses the point. The homeless 
are both poor and predominantly racial minority members. 
So long as the discrimination alleged has a racial 
animus, it is of no consequence that discrimination on 
other grounds may also play a role. Cf■ Quinones v. 
Szorc. 771 F.2d 289 (7th Cir. 1985) (conspiracy directed 
to race and political association was actionable under 
§ 1985). Moreover, irrespective of race, a sufficient 
class-based animus is pleaded because, as alleged 
(Complaint 23, 26-28), both the federal and state 
governments recognize that needy persons, such as the 
Homeless Plaintiffs, "require and warrant special 
federal assistance in protecting their civil rights." 
DeSantis v. Pacific Telephone & Telegraph Co., 608 F.2d 
327, 333 (9th Cir. 1979), cert, denied, 454 U.S. 967 
(1981). See also Tvus v. Ohio Dept, of Youth Services, 
606 F. Supp. 239, 246 (S.D. Ohio 1985) (§ 1985(3) should
be construed to reach "a wide variety of non-racial 
classes").



26

area, as to which they currently do vote. The few blacks 
within Mayfair Knollwood, by contrast, would see their votes 
diluted.

By collectively seeking to achieve these results, 
the Moving Defendants have conspired to deprive the 
Greenburgh Plaintiffs of their voting rights. Gomillion. 
supra, 364 U.S. 339. See also Means v. Wilson, 522 F.2d 833, 
839 (8th cir. 1975) cert, denied. 424 U.S. 958 (1976)
(§ 1985(3) protects the right to vote in tribal election 
against private conspiracy). They also have conspired to 
prevent or hinder the Town from giving full and undiluted 
voting rights to all residents within its current boundaries, 
regardless of race.-^

In addition, both federal and state law prohibit 
government officials from denying housing on account of race. 
See, ê jĝ , 42 U.S.C. § 3604 (1982); N.Y. Exec. L. § 291(2) 
(McKinney 1982). Government use of zoning (or other 
regulatory) power to promote racial discrimination in housing 
therefore is unlawful.

U  Aspects of the voting rights and other claims alleged in 
the complaint require development of a full factual 
record through discovery and trial. At this stage, the 
only issue is the sufficiency of the complaint's 
allegations as a matter of law.



27

United States v. City of Black Jack, 508 F.2d 1179 
(8th Cir. 1974) , cert, denied, 422 U.S. 1042 (1975), 
presented a situation strikingly akin to the one at bar. 
Community residents formed a new —  nearly all-white ■—  city 
in response to a St. Louis housing plan for low-to-moderate 
income families. After formation, the city passed an 
ordinance prohibiting new multi-family dwellings. Finding 
that the effect of the ordinance was to segregate low-income 
blacks from a white area, the court struck down the 
ordinance. Id. at 1184. See also Huntington Branch. NAACP 
v. Town of Huntington. 844 F.2d 926 (2d Cir.) (town violated 
federal law by refusing to rezone to permit construction of
multi-family units outside of specified areas), aff'd. ___
U.S. ___, 109 S. Ct. 276 (1988).

Use of zoning power to discriminate is unlawful.
An agreement so to use that power is a conspiracy to do an 
unlawful act, and hence actionable as a § 1985(3) violation. 
The complaint alleges that it is part of the Moving 
Defendants' purpose to use Mayfair Knollwood's zoning power 
to block the West HELP shelter, most of whose intended 
beneficiaries are racial minority members, such as two of the 
Homeless Plaintiffs. (Complaint 1, 23.) Thus,



28

plaintiffs' complaint states the elements of this claim as 
well . ̂

C. The First Amendment Cases That Defendants 
Relv On Are Inapplicable________________ _

The Moving Defendants seek to dress up their 
secessionist plan in First Amendment trappings, but the suit 
will not fit. There is no First Amendment privilege here.

No one has sued the Moving Defendants for 
expressing opposition to the West HELP development. They are 
free to try to persuade the County and the Town that the 
proposal should be rejected for whatever reasons. Forming a 
secessionist government, propped up by racially gerrymandered 
borders, however, is not a constitutionally protected means 
of expressing opposition. Forming a government is action.

8/ The Moving Defendants argue that, in prior state court 
litigation, West HELP development proponents claimed 
(and the state court agreed) that Mayfair Knollwood 
could not, as a matter of law, so use the zoning power. 
(Def. Mem. 3; Himes Aff., Ex. C.) DefendantsJ argument 
is a strawman. In this action, what matters is the 
Moving Defendants' purpose —  because that is a central 
element of the conspiracy. As alleged (Complaint f 1), 
the Moving Defendants have announced their intention to 
try to abuse the zoning power. That the law would deny 
them a right to do so —  were the matter eventually 
litigated —  is immaterial. Section 1985(3) reaches 
their agreement to do the unlawful act, thereby 
preventing them from doing it.



29

The mere fact that New York law calls the piece of 
paper that initiates the effort to create the new government 
a "petition" does not mean that preparing, signing, or cir­
culating the document is "petitioning" in the constitutional 
sense. See Village Law § 2-202 (McKinney 1973 & Supp. 1988). 
The citizens in Burleson, supra. 308 F. Supp. 353, also 
signed petitions in order to secede from their school 
district. The court did not pause to enjoin the secession. 
Accord, Aytch v. Mitchell. 320 F. Supp. 1372, 1375 (E.D. Ark. 
1971) (petitions circulated; injunction issued).

Indeed, voting is core First Amendment activity. 
Yet, as discussed below, in various contexts, the courts have 
issued injunctive relief against ballot measures. (See 
pp. 32-35, infra.) These decisions demonstrate that the 
First Amendment's protection for speech and petitioning does 
not extend to submission to the electorate of proposals 
which, if approved, would be unlawful. As the Supreme Court 
has held, "the voters may no more violate the Constitution by 
enacting a ballot measure than a legislative body may do so 
by enacting legislation." Citizens Against Rent Control/Coa- 
lition for Fair Housing v. City of Berkeley. 454 U.S. 290,
295 (1981).

Not surprisingly then, the authorities cited by the 
Moving Defendants do not support First Amendment immunity. 
They rely heavily on Weiss v. Willow Tree Civic Ass'n. 467



30

F. Supp. 803 (S.D.N.Y. 1979). (Def. Mem. 7-8.) In Weiss, 
however, the defendants did not go beyond advocacy; they did 
not try to form an unlawful, secessionist, government.

There, plaintiffs, a congregation of Jews, sought 
to establish a housing development in Ramapo. The 
development required local board approval. Defendants 
opposed plaintiffs' application to the board, resulting in 
eventual abandonment of the development. Plaintiffs filed a 
civil rights conspiracy action.

Judge Weinfeld granted defendants' motion to
dismiss. Relying on the First Amendment as an alternative
basis for dismissal of the § 1985(3) claim, the court
explained that the complaint:

[R]eveals, at most, a concerted effort by defendants to 
speak out against the proposed B.Y.S. development and to 
utilize various legal channels to oppose the application 
for a permit. . . . Whatever its subjective impact on 
the officials of the Town, such action was nothing more 
than peaceable assembly petitioning municipal 
authorities for redress of grievances and is thereby 
entitled to First Amendment protection. Id. at 816, 817 
(footnote omitted; emphasis added).

This case is not Weiss. The Weiss defendants urged 
the existing government to act or refrain from acting. That 
is the essence of petitioning in the constitutional sense. 
Here, on the other hand, the Moving Defendants are being sued 
for conspiring to secede. As we have seen, that conduct is 
not protected activity. Cf. 11 Cornwall, supra, 695 F.2d



31

at 42. ("11 Cornwell's actions do not implicate any First
, , , , 9 /Amendment interests at stake," citing Weiss.)—■'
The other cases relied on by the Moving Defendants 

come no closer to establishing a First Amendment privilege 
for the secessionist scheme to form an illegal government 
that is alleged here. (Def. Mem. 6-8.) Gorman Towers,
Inc, v. Boqoslavsky, 626 F.2d 607 (8th Cir. 1980), and 
Culebras Enterprises Corp. v. Rivera Rios, 813 F.2d 506 (1st 
Cir. 1987), are similar to Weiss. Both courts rejected 
conspiracy claims based on conduct taken to induce the 
government to act. Eastern Railroad Presidents Conference v. 
Noerr Motor Freight, Inc.. 365 U.S. 127 (1961), of course, 
simply held that the Sherman Act does not extend to collec­
tive efforts to secure favorable government action.

Board of County Commissioners of Adams County v. 
Shrover. 662 F. Supp. 1542 (D. Colo. 1987), and Collin v. 
Smith. 578 F.2d 1197 (7th Cir.), cert, denied. 439 U.S.

9/ By comparison, even before the Veteran decision and the 
Article 78 proceeding challenging it, defendant COUP and 
others filed a state court action in an effort to block 
the West HELP development. (See Def. Mem. 2.)
Plaintiffs have made no claim that the filing of this 
earlier suit was improper. That is because filing a 
lawsuit usually is analogous to the opposition that 
Weiss found protected. But see Mayer v. Wedgewood 
Neighborhood Coalition, 707 F.2d 1020, 1022-23 (9th Cir. 
1983) (filing of judicial proceeding is, in limited 
circumstances, actionable under the civil rights laws).



32

916 (1978), are even further afield. In Shrover, the court 
rejected a local government's attempt to silence a citizen- 
critic —  hardly a surprising result. Collin considered the 
constitutionality of several Skokie, Illinois ordinances 
passed to prevent Nazi marches. Isolated language from the 
two cases, wrenched from their dramatically distinct factual 
settings, does not support the Moving Defendants' privilege 
argument.

In summary, the Moving Defendants cite no case 
holding that a secessionist plan is constitutionally 
protected. The relevant cases hold the opposite. There is 
no First Amendment privilege to secede.

Ill
THERE IS A JUSTICIABLE CONTROVERSY

The Moving Defendants also mistakenly argue that no 
case or controversy exists. They contend, in essence, that 
there is no justiciable controversy until: (a) a favorable
vote is obtained, (b) Mayfair Knollwood is formed, and 
(c) the new village thereafter either scuttles the West HELP 
development or dilutes minority voting rights. (Def. Mem. 
10-11.)

That simply is not the law. The secessionist plan 
here is comparable to a ballot measure. Many courts have 
recognized that the propriety of a ballot proposal presents



an actual case or controversy that may be adjudicated before 
the vote.

For example, in Otev v. Common Council of the City 
of Milwaukee. 281 F. Supp. 264 (E.D. Wis. 1968), a community 
group presented petitions calling for a city council 
resolution prohibiting anti-discrimination ordinances. State 
law required the city council (called the "Common Council") 
either to adopt the resolution or to submit it to the 
electorate. The council resolved to put the proposed 
resolution on the ballot, but took no position on its 
constitutional merit.

Plaintiff, a black, sued for declaratory and
injunctive relief claiming, in substance, that adoption of
the resolution would violate Fourteenth Amendment rights. As
here, defendants argued that there was no case or
controversy. The court rejected the argument:

A controversy undoubtedly exists in this City between 
the plaintiff and his class and those who seek to 
deprive them of their right to equal protection of laws. 
The Common Council is involved in this deprivation, and 
it is clear from the record it will continue to be 
involved adversely, should the resolution pass, by 
refusing to consider action in contravention of its 
terms. . . .  If, under these circumstances, we have no 
justiciable controversy, we have arrived at that 
desolate state . . . where "community organization of 
racial discrimination can be so featly managed as to 
force the Court admiringly to confess that this time it 
cannot tell where the pea is hidden." Id. at 274, 
quoting Black, Foreword: "State Action," Equal
Protection and California's Proposition 14. 81 Harv. L. 
Rev. 69, 95 (1967).



34

The court in Holmes v. Leadbetter, 294 F. Supp. 991 
(E.D. Mich. 1968), reached the same holding on similar facts. 
Again enjoining an unconstitutional ballot proposal, the 
court wrote:

[W]e are satisfied that there is controversy between the 
plaintiffs and the defendants. Id. at 993.

As the court in Holmes further explained:
The will of the electorate does not comprehend the will 
to curtail or amend constitutional rights save in 
constitutional convention or amendment tendered for such 
purpose. Id. at 996.

Accordingly, some matters, the court wrote, simply are "no 
longer one[s] for a public vote." Id.

The Mayfair Knollwood plan to secede falls into 
this category. Indeed, this is an even stronger case for 
relief than existed in Otev or Holmes. The mischief likely 
to result from the Moving Defendants' plan to create an 
outlaw government surely exceeds that likely to flow from 
voter approval of an unconstitutional law. Accordingly, 
there is a heightened need for judicial intervention. See 
also Avtch v. Mitchell, supra, 320 F. Supp. 1372 (injunction 
issued against vote to divide school district); Ellis v.
Mayor and City Council of Baltimore, 234 F. Supp. 945 (D. Md. 
1964) (three-judge court), aff'd on other grounds, 352 F.2d 
123 (4th Cir. 1965) (injunction issued against vote on



35

reapportionment plan). Cf. Hamer v. Campbell, 358 F.2d 215, 
221 (5th Cir.), cert, denied. 385 U.S. 851 (1966) ("[t]here
can be no question that a District Court has the power to 
enjoin the holding of an election," particularly where neces­
sary "to wipe out the effects of racial discrimination").

In Otev and Holmes. the defendants were city 
officials. Both courts held that the constitutionality of 
the ballot measure presented a justiciable controversy. It 
necessarily follows that there also is a justiciable con­
troversy in an action against both the relevant government 
official (Supervisor Veteran) and the proponents who pre­
sented the ballot measure (the Moving Defendants). For 
instance, in Burleson, supra. 308 F. Supp. at 354 —  arising 
from an attempt to create a new school district —  the court 
directed joinder of "known proponents of the seces­
sion . . . . See also Avtch v. Mitchell. supra.
320 F. Supp. at 1375 (court ordered joinder of persons 
"responsible for circulating the petition" to divide the 
school district); Matter of Fossella v. Dinkins, supra, 66 
N.Y.2d 162 (1985), aff'q. 110 A.D.2d 227 (2d Dept. 1985)

10/ Before joinder, however, they intervened. Id.



36

(litigation between proponents and opponents of ballot 
measure, which the court of appeals invalidated under state 
law)

These authorities establish that there is a case or 
controversy presented by the attempt to incorporate Mayfair 
Knollwood. That Mr. Veteran denied the incorporation 
petition is of no moment. The Moving Defendants do not claim 
to have abandoned their scheme. Just the opposite: their
confederates filed an Article 78 proceeding in the Supreme 
Court of the State of New York seeking to overturn the 
Veteran decision, since removed to this court. (Himes Aff., 
Ex. B.)

Accordingly, there is a justiciable controversy 
between plaintiffs "and those who seek to deprive them of 
their rights to equal protection of laws." Otev. supra,
281 F. Supp. at 274.

11/ As with their First Amendment argument, the Moving
Defendants do little more than present selected "case or 
controversy" language from decisions arising in 
different fact contexts. (Def. Mem. 9.) Suffice it to 
say that none of the cases cited stands for the proposi­
tion that the federal court is disabled from ruling on 
the validity of a secessionist plan (or other ballot 
measure) before the vote.



37

PLAINTIFFS HAVE STANDING TO SUE
The Moving Defendants trifle with the court by 

arguing that plaintiffs lack standing. (Def. Mem. 9.) There 
is no merit to the Moving Defendants' argument that actual 
injury is necessary in order to sue. A concrete threat of 
specific injury is all that the law reguires, and that 
standard is met here.

The individual plaintiffs —  blacks and homeless 
persons —  are the targets of the conspiracy to secede. No 
case holds that such targets lack standing to sue. The NAACP 
and the National Coalition also have standing because the 
challenged conduct affects their organizational activity.

A. The Threat of Injury 
Is Sufficient_______

Cases in which standing is based on threatened —  
but not actual —  injury are commonplace. For example, in 
Village of Arlington Heights v. Metropolitan Housing 
Development. 429 U.S. 252 (1977), a developer planned to

IV

12/ With respect to standing, we are submitting affidavits
to supplement the complaint, as the cases permit. E.g.. 
Warth v. Seldin. 422 U.S. 490, 501 (1975). The 
affidvits are included in the material entitled 
"Plaintiffs' Affidavits in Opposition to Motions to 
Dismiss or for Summary Judgment and for Attorneys' Fees 
and Sanctions."



38

build racially integrated low and moderate income housing. 
Resident protests resulted in the village denying the 
necessary rezoning. The developer and three individuals 
sued. The Supreme Court held that cne of the individuals, 
Ransom, had standing to sue. Ransom lived 20 miles away from 
the project site. He had no contract to lease, but he 
alleged that he would qualify for the intended housing, and 
"probably" would move there. IcL at 264. The Court held 
that this was sufficient:

His is not a generalized grievance. Instead . . . , it 
focuses on a particular project and is not dependent on 
speculation about the possible actions of third parties 
not before the Court. Id. (citation omitted).

Ransom plainly did not suffer actual injury from 
the conduct challenged in Arlington Heights, a refusal to 
rezone. But the refusal threatened to deprive him of an 
opportunity to secure housing in the proposed development. 
That potential injury was sufficient to confer standing.

Similarly, in United States v. SCRAP, 412 U.S. 669 
(1973), an ad hoc group of students alleged that an ICC 
railroad rate increase would "cause increased use of non- 
recyclable commodities as compared to recyclable goods," 
which eventually would shift more resources into 
manufacturing, which eventually would cause more litter in 
the Washington, D.C. area parks that the students used. Id.
at 688. To describe the injury as "threatened" is to state



39

the obvious. The Supreme Court upheld standing to sue. See 
also, e.g. , Blum v. Yaretsky. 457 U.S. 991, 1000 (1982) 
(threat of injury confers standing); Pierce v. Society of 
Sisters, 268 U.S. 510, 536 (1925) ("[p]revention of impending
injury by unlawful action is a well recognized function of 
courts of equity").

All the individual plaintiffs here are threatened 
with deprivation of their rights. The Moving Defendants' 
conspiracy has taken aim at the voting rights of some of the 
plaintiffs and at the housing and shelter rights of the 
others. Plaintiffs may sue now; they are not obliged to wait 
for the Moving Defendants to pull the trigger. The principle 
is a familiar one:

One does not have to await the consummation of 
threatened injury to obtain a preventive relief. If the 
injury is certainly impending that is enough. 
Pennsylvania v. West Virginia. 262 U.S. 553, 593 (1923).

See also Otey, supra, 281 F. Supp. 264, and Holmes. supra.
294 F. Supp. 991 (plaintiffs permitted to sue to invalidate
discriminatory ballot measure before vote).

Section 1985(3) itself also includes an element of 
"injury" or "deprivation" of rights. While we have found no 
case directly on point, a threat of specific injury or 
deprivation also should be sufficient to satisfy the statute.

Recognizing the sufficiency of threatened injury 
would be consistent with the principle that, in a civil



40

rights action, where actual injury is not proven, nominal 
damages still may be awarded. See, e .q ., Carey v. Piphus,
435 U.S. 247, 266 (1978); Bevah v. Coughlin, 789 F.2d 986,
989 (2d Cir. 1986); McKenna v. Peekskill Housing Authority,
647 F.2d 332, 336 (2d Cir. 1981). The nominal damage rule is 
intended to emphasize the importance to society of the right 
underlying the action. That purpose is well-served by 
finding that threatened injury is sufficient to sustain a 
civil rights conspiracy claim.

Indeed, to hold otherwise would enable plotting
conspirators who are caught red-handed to escape civil
liability by the fortuity of their having been discovered
before inflicting actual injury. Congress, we suggest, could
not have intended so bizarre a result. More likely, Congress
intended exactly what the Supreme Court has permitted:
exposure to suit and entry of a nominal damage award to

. 13 /stigmatize the civil rights violator.—

13/ The Moving Defendants cite Hermann v. Moore. 576 F.2d
453 (2d Cir. 1978), cert, denied. 439 U.S. 1003 (1978), 
for the proposition that "a failed conspiracy is not 
actionable" under various civil rights acts, including 
§ 1985(3). (Def. Mem. 9.) The case does not hold that 
at all. The Second Circuit found no conspiracy to 
violate § 1985(3) —  not that the conspiracy failed. 
Other aspects of the decision have nothing to do with a 
failed conspiracy.



41

In short, threatened injury is all that the 
Constitution requires and this applies fully to § 1985(3).

We turn next to the standing of the three groups of 
plaintiffs.

B. The Greenburqh Plaintiffs
The landmark case of Baker v. Carr. 369 U.S. 186 

(1962), establishes that the Greenburgh Plaintiffs have 
standing to challenge the conspiracy to violate their voting 
rights. In Baker, one issue was whether voters had standing 
to challenge state legislative measures affecting 
apportionment. Plaintiffs alleged that the state's 
"classification disfavors the voters in the counties in which 
they reside, placing them in a position of constitutionally 
unjustifiable inequality, vis-a-vis, voters in irrationally 
favored counties." Id. at 207-208. Such impairment of a 
citizen's right to vote, the Supreme Court held, conferred 
standing. Id. Cf. Carey v. Klutznick■ 637 F.2d 834 (2d Cir. 
1980) (voters had standing to challenge census count because 
it diluted their vote).

Baker and Carey are concrete examples of the basic 
proposition that economic injury is not a prerequisite for 
standing; "[i]mpairment of rights guaranteed by the 
Constitution may also constitute sufficient injury to confer 
standing." Authors League v. Ass'n of American Publishers.



42

619 F. Supp. 798, 805 (S.D.N.Y. 1985), aff'd, 790 F.2d 220 
(2d Cir. 1986) .

The Greenburgh Plaintiffs are threatened with such 
injury here. As Gomillion held, a local government drawn 
along lines of race cannot stand. Any government so created 
makes an invidious —  and constitutionally impermissible —  

distinction between minority voters inside and outside of its 
boundaries. Those on the outside are deprived of their 
pre-existing right to vote on affairs of the local 
government. Those few minority members inside are left with 
a diluted vote. Both suffer an impairment of voting rights.

The Greenburgh Plaintiffs consist of black 
residents inside and outside of the proposed village of 
Mayfair Knollwood, who are qualified to vote. (Dixon Aff.
1 3; Jones Aff. f 3.) These individuals have standing to 
attack a voting rights conspiracy formed by the Moving 
Defendants

14/ Indeed, the threatened injury here is analogous to that 
in the voter ballot measure cases, where the courts 
enjoined the vote because the measure, if approved, 
would be unconstitutional or unlawful. (See pp. 32-35, 
supra.) The notion that a ward system might neutralize 
the dilutive effect within Mayfair Knollwood is 
immaterial. (Def. Mem. 13-14.) Those within the 
proposed village, such as plaintiff Dixon, have a 
constitutional right not to have their vote diluted to 
begin with. A hypothetical remedy down the road to cure

(Continued)



43

That suffices to end any standing question. So 
long as one plaintiff has standing to sue, it is immaterial 
whether all do. See, e.g.. Village of Arlington Heights v. 
Metropolitan Housing Development, supra. 429 U.S. at 264 
n.9; Carev v . Population Services International, 431 U .S .
678, 682 (1977); Authors League, supra. 619 F. Supp. at 
806. In any event, the Homeless Plaintiffs and the two
organizations also have standing.

C. The Homeless Plaintiffs
The Homeless Plaintiffs challenge the conspiracy to 

violate their housing and shelter rights. Arlington Heights. 
supra. 429 U.S. 252, discussed above, establishes their 
standing to sue.

(Continued)
inevitable dilution is no answer —  particularly when 
the remedy depends on political will.

15/ In some cases, a claim-by-claim analysis of standing may 
be appropriate. Here, however, it would not be because 
the case involves a conspiracy with interrelated purposes. 
The Supreme Court has cautioned that "the character and 
effect of a conspiracy are not to be judged by dismember­
ing it and viewing its separate parts but only by 
looking at it as a whole." United States v. Patten.
226 U.S. 525, 544 (1913). See also Continental Ore 
Co. v. Union Carbide & Carbon Corp.. 370 U.S. 690, 699 
(1962). Thus, at trial, any plaintiff could prove the 
full scope of the conspiracy. In these circumstances, 
any possible need to establish standing on a claim-by- 
claim basis dissolves.



44

The Homeless Plaintiffs are comparable to Ransom, 
the possible tenant in Arlington Heights. Ransom had stanc 
ing to challenge conduct that threatened to deny him the 
opportunity for housing. Here, the conspiracy seeks to tor­
pedo the West HELP shelter —  thus similarly denying homeless 
families with children, such as the Homeless Plaintiffs, the 
opportunity for improved housing. (See Jordan Decl. 2, 4; 
Myers Decl. 2, 4.) Accordingly, these plaintiffs have 
standing. See also Bruce v. Department of Defense. Civil 
No. 87-0425 (D.D.C. June 16, 1987) (homeless persons had 
standing although unable to show entitlement to participate 
in program challenged) (copy of decision attached as Himes 
Aff., Ex. D); NAACP, Boston Chapter v. Harris, 607 F.2d 514, 
525 (1st Cir. 1979) (minority group members had standing to 
challenge HUD funding where "it can reasonably be inferred 
from their complaint that they would accept such housing if 
it were physically safe and financially accessible to them") 

As to those Homeless Plaintiffs who are minors, the 
Moving Defendants assert, without elaboration, that "there

13J In 11 Cornwell, the Second Circuit, in dicta, questioned 
the ability of the individual retarded citizens to 
establish standing. 695 F.2d at 40. The court's 
remarks also might seem applicable here. With all 
respect, the court overstated the difficulties.
Arlington Heights makes clear that the plaintiff must 
face only loss of a specific beneficial opportunity; 
actual loss of housing, as the Second Circuit seems to 
have assumed, is not required.



45

appears a further complication. FRCP 17(c)." (Def.
Mem. 16.) We will not try to divine the undisclosed 
"complication." Capacity to sue in federal court is 
determined by the law of the party's domicile, and New York 
authorizes minors to sue. See Fed. R. Civ. P. 17(b); 67 N.Y. 
Jur. 2d "Infants and Others Persons Under Legal Disability"
§ 578 at 254. Moreover, the federal courts have construed 
capacity to sue liberally. See. e.g.. Moe v. Dinkins.
533 F. Supp. 623, 627 (S.D.N.Y. 1981), aff'd. 669 F.2d 67 (2d 
Cir. 1982), cert, denied. 459 U.S. 827 (1982) (minors 
permitted to sue without guardians ad litem where there were 
co-parties litigating and where minors' interests were 
adequately protected by counsel).

Thus, whatever "complication" the Moving Defendants 
are driving at, it is one of their own making that need not 
further divert the Court.

D. The Organizational Plaintiffs
As to organizations, the basic inquiry is the same 

as with an individual plaintiff; has the organization 
claimed "such a personal stake in the outcome of the 
controversy as to warrant his invocation of federal court 
jurisdiction." Havens Realty Coro, v. Coleman. 455 U.S. 363, 
378-79 (1982), emoting Arlington Heights, supra. 429 U.S. at 
261 (emphasis omitted). The NAACP and the National Coalition



46

satisfy this standard because the challenged conduct affects 
their organizational activity, thereby draining or diverting 
their resources.

In Havens. HOME, an organization whose purpose 
included assuring equal access to housing, sued under the 
federal Fair Housing Act. HOME alleged that defendants' 
racially discriminatory steering practices affected its 
ability to provide counseling and referral services. The 
Supreme Court held that "[s]uch concrete and demonstrable 
injury to the organization's activities —  with the 
consequent drain on the organization's resources" -- was 
sufficient for standing. 455 U.S. at 379.

Both the NAACP and the National Coalition have 
standing here. Since 1909, the NAACP has spearheaded an 
effort to establish and protect the civil rights of 
minorities. The resource drain arising from the Moving 
Defendants' frontal assault on the civil rights of black 
residents of the Town of Greenburgh is plain. (Jones 
Aff. tl 4-11.)

The National Coalition "advocate[s] responsible 
solutions to end homelessness" and provides various monetary 
aid and services to the homeless. (Complaint % 5k.) The 
Moving Defendants' resistance to the West HELP development 
clearly frustrates the National Coalition's goal to end 
homelessness. In addition, their resistance causes the



47

National Coalition to provide a higher level of assistance 
and support to homeless persons than would be necessary in 
its absence. (Hombs Decl. ff 6-12.) See also 11 Cornwell, 
supra, 695 F.2d at 39 n.l ("[sjurely if an association for 
the mentally retarded were the party plaintiffs it would have 
standing").

Thus, as many courts have found in the past, the 
NAACP and the National Coalition have standing to sue. See, 
e.g., NAACP v. Button, 371 U.S. 415 (1963) (statutory 
challenge); Huntington Branch. NAACP v. Town of Huntington.
689 F .2d 391 (2d Cir. 1982), cert, denied. 460 U.S. 1069 
(1983) (exclusionary zoning case); NAACP v. Harris. 567 F. 
Supp. 637 (D. Mass. 1983) (housing discrimination case); 
National Coalition for the Homeless v. U.S, Veterans1 Admin­
istration . 695 F. Supp. 1226 (D.D.C. 1988) (agency failure to 
comply with federal law); Younger v. Turnage. 677 F. Supp. 16 
(D.D.C. 1988) (agency failure to issue benefit standards); 
Bruce v. Department of Defense. Civil No. 87-0425 (D.D.C.
June 16, 1987) (agency failure to comply with federal law) 
(copy of decision attached as Himes Aff. , Ex. D)

11/ As 11_Cornwell suggests, the National Coalition also has 
standing to sue in a representational capacity on behalf 
of Westchester County homeless families. Cf. Hunt v. 
Washington State Apple Advertising Commission. 432 U.S.

(Continued)



48

*  *  *

Accordingly, all plaintiffs have standing to sue. 
The NAACP and the National Coalition presently feel the 
draining effect of the Mayfair Knollwood secessionist scheme. 
As to the individual plaintiffs, the concrete threat of harm 
that they face is all that the law requires.

E. Warth v. Seldin Is Inapplicable
Warth v. Seldin. 422 U.S. 490 (1975), is Moving 

Defendants' only authority to support the argument that 
plaintiffs lack standing. Warth. however, cannot carry all 
the baggage that the Moving Defendants have piled on it.
There, the Supreme Court held that Rochester residents and 
various organizations lacked standing to challenge the zoning 
practices of a suburb. The decision turned on the abstract 
quality of the controversy. No specific housing development

(Continued)
333, 343-45 (1977) (state agency had standing to sue on 
behalf of apple growers); Barrows v. Jackson. 346 U.S. 
249, 257 (1953) (standing recognized where "it would be 
difficult if not impossible for persons whose rights are 
asserted to present their grievance before any court"); 
NAACP v. Harris. 567 F. Supp. 637, 639-40 (D. Mass.
1983) (NAACP had standing to represent a constituency 
different from its own membership). The NAACP similarly 
has representational standing to assert its members' 
voting and housing rights.



was involved. Consequently, tracing an alleged injury from 
the exclusionary practices to plaintiffs was an exercise in 
speculation. It also was impossible to envision a decree 
that could afford plaintiffs specific relief.

Warth has been sharply criticized nonetheless "as 
aberrational in the extreme. . . . "  Tribe, American 
Constitutional Law 134 (1988). In any event, it is not 
dispositive here. Plaintiffs in this case challenge specific 
conduct, including a concrete plan to secede, arising from 
the proposed West HELP shelter. Causation is clear. An 
injunction against the secession is one obvious form of 
relief. Accordingly, Warth is inapplicable.

V
A CLAIM IS PLEADED AGAINST 

DEFENDANT KAUFMAN
In his separate cross-motion, defendant Kaufman 

seems to argue, albeit obliquely, that the allegations 
against him fail adequately to allege his participation in a 
conspiracy. (Kauf. Mem. 8.) But the requisite elements are 
pleaded.

A complaint need only set forth facts tending to 
show that a defendant was a member of the alleged conspiracy. 
See generally Quinones v. Szorc. 771 F.2d 289, 291 (7th Cir. 
1985); Hoffman v. Halden, 268 F.2d 280, 294-95 (9th Cir.
1959), overruled in part on other grounds. Cohen v. Norris,



50

300 F .2d 24, 29-30 (9th Cir. 1962). There is no requirement
that the defendant be charged with participating in all, or
even most, of the overt acts. Thus, as Judge Weinfeld once
noted in upholding a conspiracy claim:

That [defendant's] role in this conspiracy may have been 
limited or slight is of no consequence. A conspirator 
is liable for the acts of other members of the claimed 
conspiracy as if they were his own, whether he plays a 
minor or major role in the common scheme. Bridge C.A.T. 
Scan Associates v. Ohio-Nuclear, Inc,. 608 F. Supp.
1187, 1191 (S.D.N.Y. 1985) (footnote omitted).

See also Kashi v. Gratsos, 790 F.2d 1050, 1054-55 (2d Cir.
1986) (holding member of a conspiracy liable for all damages,
despite allegedly limited role); Lumbard v. Maalia, Inc., 621
F. Supp. 1529, 1536 (S.D.N.Y. 1985) ("those who aid and abet
or conspire in tortious conduct are jointly and severally
liable with other participants in the tortious conduct,
regardless of the degree of their participation or
culpability in the overall scheme").

Here, the conspiracy is alleged. Defendant Kaufman 
is charged specifically with agreeing to accept service of 
papers in connection with the Mayfair Knollwood incorporation 
effort. (Complaint %% 1, 2, 21, 22, 25.) His willingness 
thus to serve as an "information hub" is sufficient to 
support the allegation of participation in the conspiracy. 
Moreover, his assumption of this role strongly suggests his 
commitment actively to assist the secessionist scheme 
generally.



At the pleading stage in the case -- before any 
discovery —  the allegations against Kaufman are adequate. 
Compare Azar v. Conley. 456 F.2d 1382, 1388 (6th Cir. 1972) 
(allegation that defendant was a "close friend" of a police 
officer and was "well connected" with the police department 
was sufficient to allege a conspiracy with police); Hawk v. 
Perrillo. 642 F. Supp. 380, 385, 387 (N.D. 111. 1985)
(contact with assailants sufficient to allege conspiracy; 
assistance after the assault also sufficient).

Defendant Kaufman has submitted on his motion a 
January 1988 letter to a local legislator protesting the West 
HELP proposal on various grounds. He seems to argue that the 
letter conclusively proves his intent at all relevant times 
and thus negates the existence of any fact issue concerning 
his participation in a conspiracy. (See Kauf. Mem. 3.) 
Kaufman, however, does not deny his role in the incorporation 
activity; nor, indeed, does he disclaim involvement in any 
aspect of the Mayfair Knollwood effort —  events that 
transpired after his letter. Moreover, the Mayfair Knollwood 
map —  with its more than 30 sides —  speaks loudly as to 
intent. So too do the conclusions of Town Supervisor Veteran 
in his decision to reject the petition. (Himes Aff., Ex. A.)

In these circumstances, at most, the Kaufman letter 
raises a fact question as to his intent and that, of course, 
is an insufficient basis on which to grant summary judgment



52

in his favor. See. e.g., Adickes v. S.H. Kress & Co., 398 
U.S. 140 (1970) (summary judgment inappropriate where 
circumstantial evidence permitted an inference of 
conspiracy); DiCintio v. Westchester County Medical Center,
821 F .2d 111, 115-16 (2d Cir.), cert, denied. __ U.S. __, 108
S. Ct. 455 (1987) (fact questions as to defendant's intent 
precluded summary judgment); Gual Morales v. Hernandez Vega, 
579 F.2d 677, 681 (1st Cir. 1978) (where evidence of 
conspiracy existed, summary judgment was inappropriate 
because a jury would be entitled to disbelieve "innocent 
explanations of [defendant's] motives")

18/ Defendant Kaufman's summary judgment motion should be 
denied for another reason: his failure to submit a
statement of material facts allegedly not in dispute, as 
required by Civil Rule 3(g) of the Rules of this Court.



53

Conclusion
The definition of a conspiracy is well established:

A conspiracy is a combination of two or more persons, by 
concerted action to accomplish some unlawful purpose, or 
to accomplish some lawful purpose by unlawful means.
3 Devitt, Blackmar & Wolff, Federal Jury Practice & 
Instructions § 103.23 (4th ed. 1987).

The Mayfair Knollwood secession seeks to accomplish 
an unlawful purpose —  the creation of a racially segregated 
enclave, formed to prevent the County and Town from 
discharging legal obligations to the homeless. The secession 
also seeks to use this racial enclave —  an unlawful entity 
—  as a means to oppose the West HELP shelter. Accordingly, 
both branches of the definition of a conspiracy are 
satisfied. The same analysis applies to the conspiracy 
claims grounded in voting rights.

Plaintiffs have pleaded claims for relief under 
42 U.S.C. § 1985(3). They also have pleaded a declaratory 
judgment claim arising under the Supremacy and Oath Clauses 
of the United States Constitution. Thus, the Moving 
Defendants' motions should be denied. Correspondingly, their



54

motions for attorneys' fees and sanctions should also be 
denied. The complaint here is well-founded.

Dated: New York, New York
January 26, 1989

Respectfully submitted,
PAUL, WEISS, RIFKIND, WHARTON & GARRISON 
1285 Avenue of the Americas 
New York, N.Y. 10019 
(2

By

Attorneys for the Homeless Plaintiffs and 
the National Coalition and Local Counsel 
for the Greenburgh Plaintiffs and the NAACP

Jay L. Himes

Of Counsel:
Cameron Clark 
Jay L. Himes 
Melinda S. Levine 
William N. Gerson

c/
/ < /  / U 7v{-

GROVER G. HANKINS, ESQ. 
NAACP, Inc.
4805 Mount Hope Drive 
Baltimore, MD 21215-3297 

(301) 486-9191
Attorney for the Greenburgh 

Plaintiffs and the NAACP



Of Counsel:
Robert M. Hayes, Esq. 
Virginia G. Shubert, Esq. 
COALITION FOR THE HOMELESS 
105 East 22nd Street 
New York, N.Y. 10010 
(212) 460-8110
Julius L. Chambers, Esq. 
John Charles Boger, Esq. 
Sherrilyn Ifill, Esq.
99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900
Andrew M. Cuomo, Esq.
2 Park Avenue 
Suite 1415
New York, N.Y. 10016 
(212) 686-1000