Jones v. Deutsch Opinion

    UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK 
— - — — - — - — - - -  - -  - -  - -  - x

YVONNE JONES, ANITA JORDAN, APRIL :
JORDAN, LATOYA JORDAN, ANNA RAMOS,
LIZETTE RAMOS, VANESSA RAMOS, :
GABRIEL RAMOS, THOMAS MYERS,
LISA MYERS, THOMAS MYERS, JR., :
LINDA MYERS, SHAWN MYERS, STACEY 
FRANKLIN, CHANELLE FRANKLIN, :
RONALD FRANKLIN, JANET LLANOS,
ERIC STEVEN LLANOS, ODELL A. JONES, :
MELVIN DIXON, GERI BACON, MARY 
WILLIAMS, JAMES HODGES, NATIONAL :
ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE, INC., WHITE PLAINS/ : 88 Civ. 7738 (GLG)
GREENBURGH BRANCH, and NATIONAL
COALITION FOR THE HOMELESS, : O P I N I O N

Plaintiffs, :

-against-

LAURENCE DEUTSCH, COLIN EDWIN 
KAUFMAN, STEVEN NEIL GOLDRICH, 
MICHAEL JAMES TONE, COALITION 
OF UNITED PEOPLES, INC., and 
ANTHONY F. VETERAN, as Supervisor 
of the Town of Greenburgh,

Defendants.

x

A P P E A R A N C E S  :

Counsel for Plaintiffs Anita Jordan, April Jordan, Latoya 
Jordan, Anna Ramos, Lizette Ramos, Vanessa Ramos, Gabriel 
Ramos, Thomas Myers, Lisa Myers, Thomas Myers, Jr., Linda 
Myers, Shawn Myers, Stacey Franklin, Chanelle Franklin, 
Ronald Franklin, Janet Llanos, Eric Steven Llanos, and 
National Coalition for the Homeless, and Local Counsel 
for the Remaining Plaintiffs:



1

f' t

PAUL, WEISS, RIFKIND, WHARTON & GARRISON 
1285 Avenue of the Americas 
New York, New York 10019 

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

Counsel for Plaintiffs Yvonne Jones, Odell A. Jones, Melvin 
Dixon, Geri Bacon, Mary Williams, James Hodges, National 
Association for the Advancement of Colored People, Inc., 
White Plains/Greenburgh Branch:

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

By: Robert M. Hayes, Esq.
Virginia G. Shubert, Esq.
COALITION FOR THE HOMELESS
105 East 22nd Street
New York, New York 10010

Julius L. Chambers, Esq.
John Charles Boger, Esq.
Sherrilyn Ifill, Esq.
99 Hudson Street
New York, New York 10013

Andrew M. Cuomo, Esq.
12 East 33rd Street - 6th Floor 
New York, New York 10016 
Of Counsel

Counsel for Defendants Deutsch, Tone, Goldrich, and Coalition 
of United Peoples, Inc.:

LOVETT & GOULD 
180 East Post Road 
White Plains, New York 10601 

By: Jonathan Lovett, Esq.
Of Counsel

Counsel for Defendant Colin Edwin Kaufman:

QUINN & SUHR
170 Hamilton Avenue
White Plains, New York 10601

By: Timothy C. Quinn, Jr., Esq.
Of Counsel



1

G O E T T E L, D. J. :
In January of 1988, leaders from the Town of Greenburgh threw 

their support behind a county proposal to build emergency or 

"transitional" housing for the homeless on a 30-acre site in the 

town owned by the County of Westchester. The current design calls 

for the construction of six two-story buildings, each comprising 

some 18 units of housing, with a seventh building to be used for 

administrative support, day care, and skills training.

In response thereto, a number of residents owning property 

surrounding the proposed site formed the Coalition of United 

Peoples, Inc. ("COUP"), whose purpose, de facto or otherwise, is 

to prevent or substantially modify the housing project. As part 

of those efforts, COUP members sought to secede from the Town of 

Greenburgh by incorporating as a separate community to be 

denominated the Village of Mayfair Knollwood. Pursuant to the 

provisions of N.Y. Village Law §§ 2-200 to 2-258 (McKinney 1973 & 

Supp. 1989) , an incorporation petition was presented to Greenburgh 

Town Supervisor Anthony Veteran. Following a public hearing, Town 

Supervisor Veteran rejected the petition on various constitutional 

and statutory grounds outlined in a decision dated December 1, 1988 

(the "December 1 Decision"). Among other things, Town Supervisor 

Veteran concluded that the proposed "boundaries, where 

ascertainable, were gerrymandered in a manner to exclude black 

persons from the proposed village" and that the petition also would 

"racially discriminate against homeless persons who are 

predominantly black." December 1 Decision 5 2, at 2 and 5 3 ,  at

1



7. Two COUP members then appealed that decision to New York 

Supreme Court in an Article 78 proceeding,1 which action 

subsequently was removed to this court by the respondents. 

Concluding that we would abstain from adjudicating the Article 78 

proceeding under familiar doctrine finding its origins in Burford 

v. Sun Oil Co. . 319 U.S. 315 (1943) and Railroad Comm1n of Texas 

v. Pullman. 312 U.S 496 (1941) , we remanded the matter, sua sponte. 

to State court. In re Greenberg. No. 89 Civ. 0591, slip op. at 24- 

31 (S.D.N.Y. Apr. 17, 1989) (LEXIS). Town Supervisor Veteran 

appealed and is seeking a stay of the remanded Article 78 

proceeding pending decision by the Second Circuit.

The Greenberg respondents argued to us, in essence, that if 

the statutory scheme regulating village incorporation is allowed 

to proceed in this case, it should be a Federal court that presides 

over that process due to the implication of various federal 

questions. We disagreed. The ratio decendi of our decision was 

that, in the absence of conflicting federal-state mandates imposed 

on State or municipal officials concerning the protection of equal 

rights, the comprehensive political/regulatory process created by 

New York to govern village incorporation should be allowed to work 

its will given the State's manifest and overriding interest in such 

matters. We emphasized, however, that should that process fail to

See N.Y. Civ. Prac. L. & R. §§ 7801-06 (McKinney 1981 & 
Supp. 1989). Under N.Y. Village Law § 2-210 (McKinney 1973 & Supp. 
1989) , an Article 78 proceeding statutorily is prescribed as the 
avenue for appeal of a town supervisor's decision rejecting an 
incorporation petition.

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serve the people in a color-blind fashion, the Federal courts would 

be there to ensure the vindication of federally protected rights. 

See Greenberg. slip op. at 29 n.ll (noting that "[h]ad the instant 

incorporation petition been approved under the Village Law, and the 

Deutsch plaintiffs [plaintiffs in the instant action] (assuming 

they had standing) then challenged that action in federal court on 

Fourteenth Amendment grounds, we have little doubt that we properly 

would have jurisdiction over the subject matter and that 

plaintiffs' choice of a federal forum would be respected"). Until 

that time, however, we continue to believe that Federal 

intervention in the incorporation process is both premature and 

imprudent and would undermine sound notions of comity and 

federalism.
Plaintiffs in this case (many of whom are respondents in the 

Article 78 proceeding) seek to go one step further by, in essence, 

preempting the village incorporation process altogether. Charging 

COUP with leadership of a conspiracy to violate civil rights, 

plaintiffs seek, inter alia. a permanent injunction restraining 

COUP from continuing with their heretofore unsuccessful 

incorporation efforts. Until the incorporation petition receives 

some form of State approval under the Village Law, however, the 

harms plaintiffs seek to prevent —  alleged discriminatory

3



violations of their voting and housing rights —  cannot be 

realized.2

Moreover, to issue the injunction sought by plaintiffs, an 

evidentiary hearing to assess discriminatory intent/impact 

undoubtedly would be required. Given the present posture of this 

matter, we could very well be holding a lengthy and expensive 

evidentiary hearing on an incorporation petition that will never 

be put before the voters. Such a premature and potentially 

wasteful exercise of Federal judicial resources cannot be 

countenanced.

Understandably, lawyers, like anyone, would prefer to do 

battle on familiar turf —  in their case, the courts. But this 

lawyerly penchant for prematurely bringing local political battles 

into Federal court cannot help but erode our legitimacy and 

authority in the eyes of the citizens and Constitution we serve if 

it is given effect. Simply put, we feel no differently now than 

when we issued our remand decision: the process established by the

Before the incorporation can take effect, the petition 
must be approved by the town supervisor (who has been delegated the 
authority by the State to provide the initial review of 
incorporation petitions), survive challenge in the State courts via 
the Article 78 process, be ratified by a majority of would-be 
residents of the proposed village, and survive challenge to the 
election in state court. N.Y. Village Law §§ 2-208, 2-210, 2-222, 
& 2-224 (McKinney 1973 & Supp. 1989). If that approval is secured, 
the Secretary of State then issues a certificate of incorporation. 
Id. at § 2-234. We add that "the restraints imposed by the 
Constitution on the States [cannot] be circumvented by local bodies 
to whom the State delegates authority." Sailors v. Board of Edu.. 
387 U.S. 105, 108 n.5 (1967). Consequently, throughout our remand 
decision and here we treat the town supervisor, at least when 
exercising authority under the Village Law, as an agent of the 
State.

4



State to regulate village incorporation should and must be given 

a chance to work. Indeed, given the result thus far obtained —  

rejection of the petition, the principal result sought by this 

complaint —  it is hard to fathom why plaintiffs harbor so little 

faith in the political process they seek to enjoin. Nonetheless, 

as we have made clear, the doors to Federal court will be wide open 

should the political process ultimately work an unconstitutionally 

discriminatory result. In re Greenberg, slip op. at 29 n.11.

Given these concerns, it should not be surprising that we 

believe this action to be both procedurally and substantively 

premature unless and until the State acts to give effect to COUP'S 

efforts, and we dismiss the complaint as a result.

I. THE FIRST AMENDED COMPLAINT
The original complaint in this action was filed prior to the 

December 1 Decision rejecting the incorporation petition. 

Following that action, plaintiffs were granted leave to file a 

first amended complaint ("FAC"), which is the subject of the 

instant motions. The pertinent facts underlying this action are 

detailed more completely in our remand decision, In re Greenberg, 

slip op. at 2-8, familiarity with which is presumed.

The plaintiffs are comprised of two groups: (i) a number of 

black individuals who either live in Greenburgh and would be 

affected by approval of the allegedly gerrymandered incorporation 

petition or who live in Westchester County and would supposedly 

qualify for residence at the proposed housing project (the

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"individual plaintiffs"); and (ii) the National Association for the 

Advancement of Colored People, Inc., White Plains/Greenburgh Branch 

(the "NAACP") and the National Coalition for the Homeless (the 

"institutional plaintiffs"). The defendants are COUP and four of 

its leaders (the "COUP defendants") and Town Supervisor Veteran.

Based on COUP'S allegedly discriminatory efforts to 

incorporate the Village of Mayfair Knollwood, FAC 5 1, at 1-2, four 

counts are presented in the complaint:

count I —  the COUP defendants, in violation of 42 U.S.C. § 1985(3) 
("section 1985(3)"), have conspired and are continuing to 
conspire to abridge the voting rights of certain of the 
individual plaintiffs by gerrymandering in a racially 
discriminatory fashion the proposed boundaries of the Village 
of Mayfair Knollwood;3

count II —  the COUP defendants have conspired and are continuing 
to conspire in violation of section 1985(3) to violate the 
housing rights of those individual plaintiffs now homeless;

count III —  the COUP defendants have conspired and are continuing 
to conspire in violation of section 1985(3) to violate the

The substantive violations comprising this count are 
alleged violations of U.S. Const, amend. XV; section 2 of the 
Voting Rights Act, 42 U.S.C. § 1973; N.Y. Const, art. I, §§ 1 & 
11; and N.Y. Civ. Rights Law § 40-c (McKinney Supp. 1989). The 
NAACP joins this count on its own behalf and on behalf of its 
members.

A The substantive violations comprising this count are 
alleged violations of the U.S. Const, amend. XIV; section 804 of 
the Fair Housing Act, 42 U.S.C. § 3604; N.Y. Const, art. I, § 11; 
id. at art. XVII, § 1; N.Y. Civ. Rights Law § 40-c (McKinney Supp. 
1989); and N.Y. Exec. Law § 291(2) (McKinney 1982). The NAACP 
joins this count on its own behalf and on behalf of its members. 
The National Coalition for the Homeless joins this count on its own 
behalf and on behalf of the homeless of Westchester County.

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those individualemergency-shelter rights possessed by 
plaintiffs now homeless;5

count IV —  this count is asserted solely against defendant 
Veteran, and it seeks a judgment declaring that Veteran 
possesses the authority under the Federal and State 
Constitutions, consistent with his oath of office, to reject 
the COUP incorporation petition.6

In addition to compensatory damages and attorney's fees, 

plaintiffs seek "entry of a permanent injunction restraining the 

[COUP] Defendants from continuing their unlawful conspiracy, 

including, but not limited to, pursuing any further proceedings 

with respect to the Petition to incorporate the proposed Village 

of Mayfair Knollwood." FAC at 25. Our jurisdiction is premised 
on the bases of the asserted federal claims.

The individual plaintiffs allege standing sufficient to 

maintain this action on grounds that (i) they are being denied or 

threatened with denial of their voting and housing rights, FAC 5 
52(a) & (b), at 20, and (ii) they "are being denied the benefits 

of association, residence, interaction and other contact arising 

from living in a community that is free from discrimination on 

account of race or homelessness," FAC 5 52(c), at 20. The

The substantive violations comprising this count are 
alleged violations of the U.S. Const, amend. XIV; 42 U.S.C. §§ 601
& 602; N.Y. Const, art. I, § 1; id̂ _ at art. XVII, § 1; N.Y. Soc. 
Serv. Law §§ 62(1) & 131 (McKinney 1983 & Supp. 1989). The 
National Coalition for the Homeless joins this count on its own 
behalf and on behalf of the homeless of Westchester County.

Town Supervisor Veteran was included in the original 
complaint as a member of the alleged civil rights conspiracy. One 
of the key changes embodied in the FAC, as a result of the December 
1 Decision, is the deletion of Veteran from the section 1985(3) 
counts.

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institutional plaintiffs allege standing on the basis that their 

basic goals are being thwarted by the COUP conspiracy and that in 

response thereto these groups have had to divert institutional 

resources. FAC 5 52(d), at 20-21.
The COUP defendants move to dismiss the complaint on various 

grounds, including lack of a justiciable question, standing, and 

subject matter jurisdiction.7 In addition, they seek an award of 
attorney's fees under 42 U.S.C. § 1988 or sanctions pursuant to 

Fed. R. Civ. P. 11. Upon removal of the Article 78 proceeding, 

these motions were adjourned sine die pending our decision as to 

whether removal of the Article 78 petition was appropriate. Upon 

issuance of our remand decision, the instant motions were scheduled 

for oral argument, and are now ready for decision. * 8

Defendant Colin Edwin Kaufman, a COUP member, is 
represented by separate counsel and he moves individually for 
dismissal or, alternatively, for summary judgment. We treat his 
motion as part of the motion to dismiss made by the other COUP 
defendants.

8 Defendant Veteran has not joined in these motions to 
dismiss, undoubtedly for his own strategic reasons. In a benign 
sense, he presumably wants this matter resolved as quickly as 
possible in whatever forum. In a more Machiavellian sense, a 
Federal court order declaring that Veteran had to do what he did 
in the December 1 Decision undoubtedly would help relieve whatever 
political pressure he may be feeling. In any event, because he has 
not moved to dismiss, count IV of the FAC is not addressed by this 
decision and, at least temporarily, is left intact. The parties 
can be sure, however, that notwithstanding their collective wishes, 
the court will sua sponte if necessary seek briefing on dismissal 
issues if they intend to press forward with count IV. For example, 
given the apparent identity of interests between these parties, 
count IV might fairly be considered collusive or, at minimum, 
lacking in concrete adverseness. See generally C. Wright, A. 
Miller, & E. Cooper, Federal Practice and Procedure 5 3530 (2d ed. 
1984) . In addition, as plaintiffs' counsel concedes, "the Article 
78 proceeding and [count IV] here are [simply] two sides of the 
same coin." Plaintiffs' Brief, at 17. A further question is

8



II. DISCUSSION
If a ripe and cognizable claim embodying the kind of 

injunctive relief sought herein could be asserted, and if these 

plaintiffs had standing to bring such a claim, a strong argument 

could be made that we should stay our hand, for to do otherwise 

would potentially allow this action to work an end run on the 

pending Article 78 proceeding. These concerns do not present 

themselves, however, because we find that the FAC does not contain 

the stuff of a ripe and cognizable federal claim.

fâ  Ripeness

The COUP defendants move broadly to dismiss due to lack of a 

justiciable question. Justiciability is a term of art embracing 

the constitutional and related jurisprudential limitations placed 

upon the jurisdiction of Federal courts. See generally. Flast v. 

Cohen. 392 U.S. 83, 94-97 (1968). It is an umbrella-like term 

which finds beneath its cover the various doctrines that shape and 

define our authority to act in particular cases: ripeness, 

standing, mootness, advisory opinion, and political question. 

Although ripeness and standing virtually transect one another in 

this case, it is our view that this matter is not ripe and must be 

dismissed.

raised, therefore, as to the appropriate exercise of our 
jurisdiction under Younger v. Harris, 401 U.S. 37 (1971) and/or 
Colorado River Water Conservation Dist. v. United States, 424 U.S. 
800 (1976).

9



The ripeness doctrine is designed to ensure that a dispute has 

"matured to a point that warrants decision." 13A C. Wright, A. 

Miller, & E. Cooper, Federal Practice and Procedure § 3532, at 112 

(2d ed. 1984) [hereinafter "Wright, Miller. and Cooper"!. 

Determining whether that point has been reached "turns on 'the 

fitness of the issues for judicial decision' and 'the hardship to 

the parties of withholding court consideration.'" Pacific Gas & 

Elec. Co. v. State Energy Resources Conservation and Dev. Comm'n, 

461 U.S. 190, 201 (1983) (quoting Abbott Laboratories v. Gardner, 

387 U.S. 136, 149 (1967)). Neither prong of this formula is 

satisfied here.9
The alleged conspiracy is designed to abridge voting, housing, 

and emergency-shelter rights purportedly guaranteed by federal and 

state law. The vehicle chosen, however, to accomplish these 

pernicious ends —  incorporation of the Village of Mayfair 

Knollwood —  is not now and may never be a reality. To the 

contrary, the incorporation petition has been rejected by Town 

Supervisor Veteran.
Plaintiff contends, nonetheless, that we need not wait for 

life to be breathed into this Frankenstein monster, if a monster 

it is, before acting to protect established rights. As a general 

proposition, we do not disagree with this contention. "'One does 

not have to await the consummation of threatened injury to obtain

Although the Abbott Laboratories test was articulated in 
a case challenging administrative action, these same concerns 
inform analysis in a non-administrative context as well. Poe v . 
Ullman. 367 U.S. 497, 508-09 (1961).

10



preventive relief. If the injury is certainly impending, that is 

enough [to prevent dismissal on ripeness grounds].'" Regional Rail 

Reorganization Act Cases. 419 U.S. 102, 143 (1974) (emphasis added) 

(quoting Pennsylvania v. West Virginia. 262 U.S. 553, 593 (1923)). 

See also Lake Carriers' Ass'n v. MacMullen, 406 U.S. 498, 506 

(1972) (noting ripeness question centers on whether controversy is 

111 of sufficient immediacy and reality to warrant'" relief) 

(emphasis added) (quoting Maryland Casualty Co. v. Pacific—Coal— & 

oil Co. . 312 U.S. 270, 273 (1941)). We do not agree with 
plaintiffs that the end of this conspiracy is sufficiently 

"impending" or that the controversy is of such "immediacy and 

reality" as to warrant the relief here sought.
As to the deprivation or dilution of voting rights, that claim 

is based on a number of contingencies that have not yet occurred. 

As outlined supra note 2, before a certification of village 

incorporation will be issued by the State an incorporation petition 

must be certified by the town supervisor, survive challenge via an 

Article 78 proceeding, be approved by a majority of the would-be 

voting residents of the proposed village, and survive court 

challenge to the electoral process utilized. The instant petition 

has not even cleared the first of these hurdles.
Obviously, it is conceivable that the December 1 Decision will 

be reversed by the New York courts during the Article 78 

proceedings. Although conceivable. we think the possibility far 

too speculative and of insufficient immediacy and reality as to 

render this action fit for judicial decision. Among other things,

11



the December 1 Decision sets forth six separate bases, some 

constitutional (both Federal and State) and some statutory, as 

reasons for Town Supervisor Veteran's action. See In re Greenberg, 

slip op. at 5-6. If any one of these grounds for rejection are 

affirmed, then the COUP petition will fail. Thus, not only does 

this case rest on a hypothetical reversal of the December 1 

Decision by the New York courts, but reversal will occur only if 

all six of the grounds stated by Town Supervisor Veteran are found 

to be infirm. That we find this possibility to be too removed to 

justify intervention by a Federal court should not be surprising.

This case, therefore, is strikingly dissimilar from the 

leading Supreme Court decision cited as the linchpin of plaintiffs' 

voting rights claims. In Gomillion v. Liqhtfoot, 364 U.S. 339 

(1960), plaintiffs sought to enjoin operation of a statute enacted 

by the Alabama Legislature which gerrymandered (in a racially 

discriminatory fashion) the boundaries of the City of Tuskegee. 

The Court held that an injunction would be appropriate, but the 10

10 Moreover, certain of the challenges raised by the Article 
78 petitioners are based on contentions that the December 1 
Decision is unsupported by sufficient evidence and that the 
proceedings held by Town Supervisor Veteran did not comport with 
the statutory requirements. Id. at 6-8. If these claims are
proven, an option seemingly available to the New York courts wou 
be remand of the petition to Town Supervisor Veteran for further, 
corrected proceedings. J. Weinstein, H. Korn, & A. Miller, Ne^ 
York Civil Practice IT 7806.01, at p. 78-145 (1988). Thus, although 
the Article 78 petitioners have sought reinstatement of the 
petition, that need not be the necessary product of reversal. 
Consequently, even if the reversal feared by plaintiffs occurs, the 
conclusion that the allegedly discriminatory petition will then 
become a reality remains too attenuated.

12



case clearly was ripe for decision —  the Alabama Legislature had 

passed the offending statute and the resulting gerrymander, 

therefore, certainly was impending. Id. at 340.
As to the threatened deprivation of housing and emergency- 

shelter rights, these claims depend initially upon the success of 

the currently rejected incorporation effort and then upon the 

occurrence of certain additional events. If the gerrymander/voting 

rights claims growing from the derailed petition effort are not yet 

ripe, it follows a fortiori that the housing claims are premature.11

In arguing that this matter is fit for judicial intervention, 

plaintiffs cite four cases in which Federal courts acted to enjoin 

allegedly discriminatory secessionist movements that threatened to 

frustrate existing school desegregation orders. Although ripeness 

was not addressed specifically in any of these decisions, in each 

case either the secession being challenged had been approved or 

some other event had occurred which rendered the possibility of 

secession sufficiently impending. See United States— v.— Scotland 

Neck City Bd. of Edu.. 407 U.S. 484, 486-87 (1972) (state statute

11 There is yet a further, fundamental difficulty underlying 
the exercise of our jurisdiction in this case. In crafting 
injunctive relief, this court must be very specific in delineating 
what precisely is being enjoined. Although we could conceivably 
enjoin pursuit of the incorporation petition as it was submitted, 
assuming its discriminatory purpose or impact, the practical effect 
of that relief could prove limited should COUP or a similar group 
of citizens decide to initiate a second incorporation petition. 
So long as the second petition was substantially different from the 
first in its geographical makeup, our injunction would in all 
probability not apply. In reality, what plaintiffs really want is 
an injunction barring COUP or its members from opposing the housing 
project, and such an injunction would clearly be overbroad and 
beyond the power of this court to approve.

13



authorizing creation of new school district had been approved and 

residents subsequently had ratified ballot referendum effecting 

that purpose); Wright v. Council of Emporia. 407 U.S. 451, 454-59 

(1972) (new city already formed and steps taken by it to withdraw 

its students from desegregated school district and create its own 

independent district); Lee v. Macon County Bd. of Edu., 448 F . 2d 
746, 749, 752 (5th Cir. 1971) (incorporation of independent school 

district had occurred); Burleson v. County Bd. of Election Comm1rs, 

308 F. Supp. 352, 353-54 (E.D. Ark.) (incorporation petition had 

been certified and election approving secession had occurred), 

aff'd. 432 F .2d 1356 (8th Cir. 1970) (per curiam).12 * These cases 
are distinguishable from the instant facts where there has been 

neither certification of the incorporation petition nor an election 

approving incorporation.
Plaintiffs insist that we need not wait for those steps to 

occur before acting, citing additionally and primarily two cases 

in which Federal courts enjoined ballot referenda that the courts 

viewed as unconstitutional. Holmes v. Leadbetter, 294 F. Supp. 991 

(E.D. Mich. 1968); Otev v. Common Council of Milwaukee, 281 F. 

Supp. 264 (E.D. Wis. 1968). The rationale underpinning these cases 

is that courts need not wait for voter approval of a referendum

12 For similar reasons, other cases plaintiffs cite for 
analogous authority are unavailing. See Huntington Branch. NAACP 
v. Town of Huntington. 844 F.2d 926, 928, 941 (2d Cir. 1988) (town 
board had already denied petition to amend discriminatory zoning 
regulation), aff1 d . 57 U.S.L.W. 3331 (U.S. Nov. 7, 1988) (per 
curiam); United States v. City of Black Jack. 508 F.2d 1179, 1188
(8th Cir.) (town board had adopted discriminatory zoning 
ordinance), cert, denied. 422 U.S. 1042 (1975).

14



future events that may not occur as anticipated, or indeed may not 

occur at a l l . Thomas v. Union Carbide Agric. Prod. Co., 473 U.S.

568, 580-81 (1985) (quoting 13A Wright, Miller,_& Cooper § 3532,

at 112) .14
In addition to assessing the fitness of the issue for judicial 

determination, Abbott Laboratories requires that we consider the 

hardships that would inure should we decline to act at this time. 

Frankly, we see none —  or at least none that would justify 

intervention now. Should the incorporation petition be certified 

(and, if required, voter approval be obtained), any party with 

standing may seek at that time to enjoin the secession and, if that 

party can meet the requirements for an injunction, prevent whatever 

imminent harm is threatened.
The only "hardships" certain of these plaintiffs are enduring 

are the costs incurred in opposing the petition politically and/or

14 We underscore additionally that, notwithstanding Holmes 
and otev. we do not pass upon the propriety of court intervention 
prior to a scheduled vote on an incorporation petition. As New 
Yorkers should well know in light of Governor Thomas Dewey's "upset 
loss" in the 1948 presidential election, no vote is certain. We 
think voters can comprehend constitutional arguments made in the 
context of a referendum campaign, and preempting voters from making 
an electoral judgment on that score is a course to be traversed 
most warily it seems to us. Nor do we perceive the question to be 
as closed as plaintiffs suggest. See, e.g., Burleson, 308 F. Supp. 
at 353 (a case cited in plaintiffs' own brief whereby court 
enjoined creation of independent school district on grounds it 
threatened to undermine desegregation order, but did so only .after 
voter approval of secession petition at an election— the— cour-t=. 
previously declined to enjoin). Thus, it may well be (although we 
do not decide the matter) that before this case ripens for 
adjudication the incorporation petition will not only have to be 
certified for a vote but an election approving the petition must 
also have taken place.

16



as respondents in the underlying Article 78 proceeding. These are 

the normal costs we as a society are prepared to recognize as a 

consequence of the democratic and statutory processes implicated 

here; they are not the kind of "hardships" that would militate in 

favor of court intervention in what is an otherwise premature 

action.
In that context, we note that, especially when assessing the 

hardships resulting from judicial inaction, the ripeness and

standing doctrines tend to merge. See Warth v._Seldin, 422 U.S.

490, 499 n.10 (1975) (noting "standing question thus bears close

affinity to question[] of ripeness") ; Abbott Laboratories, 387 U.S. 

at 153-54 (discussing sufficiency of plaintiffs' standing in 

determining whether, as matter of ripeness, hardships warranted 

court action); accord 13 Wright, Miller, & Cooper § 3529, at 289; 

id. § 3531.4, at 437. We add, therefore, that the injuries alleged 

in the FAC, outlined supra, are not persuasive in justifying 

judicial action at this time.
As to the individual plaintiffs, the claimed "denial" of 

voting and housing rights is not material; no one has yet been 

denied any thing or any rights (except, of course, COUP, whose 

incorporation petition has been denied). As to the "threatened 

denial" of these rights, the injury alleged is too remote and 

speculative to support standing given the contingencies outlined 

above. See Simon v. Eastern Kv. Welfare Rights Org., 426 U.S. 26, 

44 (1976) (holding "unadorned speculation will not suffice" to

confer standing). In seeking analogous support for its position,

17



plaintiffs at oral argument generally referenced a case involving 

hazardous fire conditions at a prison facility in which prisoners 

were found to have standing to challenge those conditions. Such 

were the facts and holding of DiMarzo v. Cahill, 575 F.2d 15, 18 

(1st Cir.), cert, denied. 439 U.S. 927 (1978), which concluded: 
"One need not wait for the conflagration before concluding that a 

real and present threat exists." (Emphasis added.) We have no 

quarrel with this holding; indeed, a contrary holding requiring 

that prisoners first be burned before they could demonstrate 

standing to challenge hazardous conditions would render the 

threatened injury component of standing a nullity (and absurdity). 

DiMarzo is far removed from the facts before us, however. At least 

until the incorporation petition is certified, and perhaps until 

voter approval also has been obtained, plaintiffs' claims of 

threatened harm are too imaginary to support standing.
Finally, their claim of alleged psychic and emotional injury 

resulting from the deprivation of benefits that inure with living 

in a discrimination—free environment is particularly troubling. 

It is true that the Supreme Court has held that Congress intended 

the loss of benefits from interracial association to be sufficient 

injury to confer standing under the Fair Housing Act. Trafficante 

v. Metropolitan Life Ins. Co.. 409 U.S. 205, 209-12 (1972). As 

noted supra. however, the housing claims in this case are 

particularly speculative and, as was apparent at oral argument, the 

real debate on ripeness rests on the soundness of the 

gerrymander/voting rights claims. As to those claims, we do not

18



think such a generous standing allowance can be engrafted. See Ad 

Hoc Comm, of Concerned Teachers v. Greenburah #11 Free Union School 

Dist. . No. 88-7697, slip op. at 2774 (2d Cir. Apr. 17, 1989) 

(noting that, absent some statutory directive relaxing or 

broadening standing requirement, deprivation of benefits of 

interracial association has never been recognized as sufficient to 

confer Article III standing) . We have been referred to no such 

statutory allowance embodied in the Voting Rights Act, nor can we 

divine one. To the contrary, it seems to us that injury of this 

nature, if deemed sufficient to confer standing, inevitably will 

invite friction with First Amendment freedoms. Although the 

Thirteenth and Fourteenth Amendments surely prevent private and 

public actors from carrying into practice certain discriminatory 

beliefs, the First Amendment just as surely protects the expression 

of discriminatory beliefs many of us find offensive as the price 

of "uninhibited, robust, and wide-open" debate on public issues. 

New York Times v. Sullivan. 376 U.S. 254, 270 (1964). See also 

Weiss v. Willow Tree Civic Ass'n. 467 F. Supp. 803, 818 (S.D.N.Y. 

1979) (Weinfeld, J.) (noting "defendants have every right to band 

together [and petition the government] for the advancement of 

beliefs and ideas, however unpalatable the ideas or whatever the

19



underlying motive").15
As to the institutional plaintiffs, they contend that the 

basic goals of the institutions are being thwarted by the alleged 

conspiracy and that this has led to a consequent diversion of 

institutional resources. They believe these financial losses

confer standing under the teaching of Havens Realty_Corp.__

Coleman. 455 U.S. 363 (1982) . We disagree. In Havens, the

organizational plaintiff provided counseling and referral services 

to clients in search of housing. To combat the defendants' alleged 

practice of "racial steering," id. at 366 n.l, the organization was 

forced to spend additional resources for its counseling and 
referral services. The Court held this to be sufficient injury for 

standing purposes. Id. at 379. That is very different from the 

situation here, where the institutional defendants have injected 

themselves into this matter in the interest of furthering their 

societal goals, and have spent resources to advance their 

positions. That is not Havens. Indeed, Havens reaffirms the 

notion that an allegation which fundamentally asserts a "setback 

to the organization's abstract societal interests" will not satisfy 

the standing requirement. Id. (citing Sierra Club v. Morton, 405 

U.S. 727, 739 (1972)). Stripped of its trappings, however, we

15 This does not mean, as plaintiffs apparently misperceive, 
that we think discriminatory motive is irrelevant and should be 
ignored by state or municipal officials in reviewing incorporation 
petitions. See In re Greenberg. slip op. at 15 n.6 (and 
accompanying text); id. at 29 n.ll. To the contrary, we have 
stated very clearly that States are proscribed from approving 
gerrymandered plans contrived due to racial animus. Id. at 14 n.5.

20



think the institutional plaintiffs in reality assert just such a 

"setback."

In Sierra Club. the Court held that the plaintiff 

organization's long-standing interest in protecting the environment 

did not confer on it standing to challenge the Government's 

development of a national park. Undoubtedly the Sierra Club had 

devoted institutional resources in opposing the Government's 

action, but the Court nonetheless found the Club's "special 

interest" in the project and environmental problems generally to 

be insufficient for standing purposes absent some personal harm. 

Sierra Club. 405 U.S at 734-40. We think Sierra Club, and not 

Havens. controls the issue here.16

Thus, because we find the claims as asserted to be unfit for 

judicial resolution, and because we see no cognizable hardship 

flowing from our decision to withhold consideration at this time, 

we find that plaintiffs' claims are not ripe and counts I, II, and 

III of the FAC must be dismissed.

Plaintiffs emphasized repeatedly at oral argument that the 

distinguishing feature in this case is the filing of the

Of course, the institutional plaintiffs are entitled to 
sue in a representational capacity on behalf of any of their 
members who have been injured, but that right is derivative of the 
individual member's right to sue. NAACP v. Button. 371 U.S. 415, 
428 (1963) (citing NAACP v. Alabama ex rel. Patterson. 357 U.S. 
449, 458-60 (1958)). Consequently, that allowance is not 
implicated here in light of our earlier holdings as to the 
individual plaintiffs.

We add only that we perceive certain other infirmities 
related to standing, both as to the individual and institutional 
plaintiffs, that we need not elaborate upon here given our holding 
as to ripeness.

21



incorporation petition. Until that time, plaintiffs admit that the 

COUP defendants had engaged in protected organizational activity, 

but that once the concrete step of filing the incorporation 

petition was taken they say the character of COUP'S conduct changed 

and became actionable. For all the reasons outlined above, we 

disagree; but even if plaintiffs are correct and the mere filing 

of an incorporation petition renders this case fit for judicial 

intervention, we think the complaint must be dismissed on a further 
and very related ground —  failure of subject matter jurisdiction 

due to the current lack of state involvement in the conspiracy.

(b) Subject Matter Jurisdiction

Section 1985(3) provides, in pertinent part:
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 [the "deprivation clause"]; 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 [the 
"preventing-or-hindering clause"]; . . . the party so
injured or deprived may have an action for the recovery 
of damages occasioned by such injury or deprivation, 
against any one or more of the conspirators.

Plaintiffs rely on both the deprivation and preventing-or-hindering

clauses in support of their claims. They contend that either there

has been state action in furtherance of the conspiracy's goals or,

alternatively, that state action is immaterial since the reach of

section 1985(3) extends to embrace private conspiracies. The

former conclusion is without merit and the latter, although

22



generally unassailable, see Griffin v. Breckenridge, 403 U.S. 88, 

104-06 (1971), is not controlling here.

1. The Deprivation Clause

Section 1985(3) contains no "color of state law" or "state 

action" requirement. Nonetheless, it is a remedial statute; it 

creates no substantive rights in itself. United Brotherhood of 

Carpenters & Joiners v. Scott. 463 U.S. 825, 833 (1983) (citing

Great Am. Fed. Savinas & Loan Ass'n v. Novotny. 442 U.S. 366, 372 

(1979)). Consequently, in Scott the Court made clear that if the 

underlying right allegedly deprived by the purported conspiracy 

derives from a proscription against state action, state involvement 

in the conspiracy is a necessary predicate to the section 1985(3) 

claim. Scott. 463 U.S. at 830-33. Thus, in Griffin v.

Breckenridge no state action was required since the underlying 

right allegedly deprived —  the constitutional right to travel —  

served as a shield against both public and private conduct, whereas 

in Scott state action was required since the rights allegedly 

protected —  First Amendment rights made applicable to the States 

by the Fourteenth Amendment —  are rights guaranteed only from the 

excesses of state behavior. Id. at 831-33.17

To the extent Weise v. Syracuse Univ. . 522 F.2d 397, 408 
(2d Cir. 1975), a pre-Scott case cited by plaintiffs, holds to the 
contrary, we find that it has been overruled by Scott. We reach 
the same conclusion as to similar, pre-Scott authority outside this 
circuit cited by plaintiffs. But see Cohen v. Illinois Inst, of 
Technology. 524 F.2d 818, 827-29 (7th Cir. 1975) (Stevens, J.) 
(anticipating Scott and holding that if underlying right is 
triggered by state action, section 1985(3) conspiracy to deprive 
persons of that right must involve state), cert, denied. 425 U.S.

23



The plaintiffs concede that the rights allegedly deprived by 

the COUP conspiracy (or, more accurately, those rights threatened 

with deprivation) are rights protected only from state action.* 18 

They argue, however, that the Scott state action requirement is 

satisfied here. We disagree.
The conduct of private parties may be characterized as state

action generally under the following circumstances:

First, the deprivation must be caused by the exercise of 
some right or privilege created by the State or by a rule 
of conduct imposed by the State or by a person for whom 
the State is responsible. . . . Second, the party charged 
with the deprivation must be a person who may fairly be 
said to be a state actor.

Lucrar v. Edmondson Oil Co. . 457 U.S. 922, 937 (1982). The
plaintiffs' position, in essence, is that COUP'S utilization of the 

state-created village incorporation process satisfied the first 

prong, and the town supervisor's actions in calling a public 

hearing on the petition satisfies the second prong. This

943 (1976); Weiss v. Willow Tree Civic Ass'n. 467 F. Supp. 803, 
811-15 (S.D.N.Y. 1979) (Weinfeld, J.) (same). We add that Justice 
Stevens, who authored Cohen, joined the majority in Scott.

18 See United States v. Guest. 383 U.S. 745, 755 (1966) 
(Equal Protection Clause protects individuals only from state 
action); Terry v. Adams. 345 U.S. 461, 473 (1953) (Frankfurter, J.) 
(Fifteenth Amendment requires state action). As to the remaining 
Federal statutory rights and the state constitutional and statutory 
rights, the plaintiffs do not contest the conclusion that each is 
triggered only due to state action and, indeed, they expressly 
"assume'' for present purposes that the federal and state voting 
rights provisions apply only against state conduct. Plaintiffs' 
Supplemental Brief, at 25 n.12. Thus, any reliance plaintiffs 
place on Perry v. Manocherian. 675 F. Supp. 1417, 1427-28 (S.D.N.Y. 
1987) is misplaced since the underlying rights allegedly deprived 
in that case extended to private conduct.

24



conclusion cannot withstand even the most generous reading afforded 

existing case law.

Amplifying the above test, the Lugar Court suggested that a 

private person "may fairly be said to be a state actor" either 

"because he has acted together with or has obtained significant aid 

from state officials. or because his conduct is otherwise 

chargeable to the State." Id. (emphasis added). In two decisions 

rendered the same day as Lugar. the import of the "significant aid" 

phraseology was made clear. In Blum v. Yaretskv. 457 U.S. 991, 

1004 (1982) , patient transfers effected by a state-regulated

nursing home were held not to constitute state action since "a 
State normally can be held responsible for a private decision only 

when it has exercised coercive power or has provided such 

significant encouragement, either overt or covert, that the choice 

must in law be deemed to be that of the State." Likewise, in 

Rendell-Baker v. Kohn. 457 U.S. 830, 841 (1982), personnel 

decisions by a private school regulated and partially funded by the 

State were found to retain their private characteristics since 

those actions "were not compelled or even influenced by any state 

regulation." Thus, as the Court has made clear, the mere use by 

private parties of existing state procedures does not in and of 

itself give rise to state action; it is only "when private parties 

make use of state procedures with the overt. significant assistance 

of state officials [that] state action may be found." Tulsa

25



Professional Collection Serv., Inc, v. Pope. 56 U.S.L.W. 4302, 4304 
(U.S. Apr. 19, 1988) .19

That requisite measure of state support, assistance, or 

compulsion is patently lacking here. COUP has invoked the state- 

created procedures for village incorporation, but that alone is 

not enough. The only state act allegedly in furtherance of the 

scheme was the town supervisor's actions in convening and chairing 

the public hearing on the petition —  purely ministerial actions 

he was required to take pursuant to New York law. Conversely, the 

only substantive action he has taken (issuance of the December 1 

Decision) was in opposition to COUP'S efforts. How, then, it 

seriously can be argued that the alleged conspiracy has received 

the imprimatur or assistance of the State is, to this court's mind, 

an unfathomable contention.

Alternatively, plaintiffs insist that COUP has acted "together 
with" state officials, Lugar. 457 U.S. at 937, characterizing the 

State as a "joint participant" in the alleged conspiracy. The 

State's interests, however, as manifested by the December 1 

Decision, are completely antagonistic to COUP'S alleged purposes.

Thus, in Tulsa Professional, actions by an estate's 
executrix in publishing a notice advising creditors of the pending 
probate proceedings were found to include sufficient indicia of 
state involvement. In addressing whether the published notice 
satisfied due process, the Court found state action because the 
executrix was appointed by probate court, and the statutory notice 
requirement was not self-executing (indeed, the executrix in that 
case was acting under direct court order to publish the notice). 
Further, the probate court alternatively was described as being 
"intimately involved" with or as playing a "pervasive and 
substantial" role in the probate proceedings. Tulsa Professional. 
56 U.S.L.W. at 4305.

26



State action cannot be posited on a joint-participation theory

given this posture. NCAA v. Tarkanian. 57 U.S.L.W. 4050, 4055 n.16

(U.S. Dec. 12, 1988).20 The instant facts, therefore, contrast

starkly with Dennis v. Sparks. 449 U.S. 24, 28-29 (1980), where

private parties who bribed and corruptly conspired with a local

judge were found to be state actors. Just as the alleged COUP

conspiracy cannot incorporate the Village of Mayfair Knollwood

without resort to state procedures, neither could the private

parties in Sparks effectuate their scheme (enjoining mineral

production from plaintiff's oil leases) in the absence of a court

order. It was the official action. however —  issuance of a court
order corruptly obtained —  and not the mere filing of a civil

complaint that provided the necessary state involvement with the

conspiracy. Likewise, in Lugar state action was found because an

ex parte order of attachment had been issued by a state court and
0

executed by the county sheriff. Lugar. 457 U.S. at 924. No such 

meaningful or substantive state act in furtherance of the alleged 

COUP conspiracy has occurred here.

"In the final analysis the guestion is whether 'the conduct 

allegedly causing the deprivation of a federal right [can] be 

fairly attributable to the State.'" Tarkanian. 57 U.S.L.W. at 4056

Indeed, we emphasize here that the project is a county- 
sponsored project with the implicit, if not explicit, backing of 
the State. The project developer, after all, is a not-for-profit 
corporation operated by the Governor's son, Andrew Cuomo. In 
addition, given this public sponsorship among other things, we 
repeat a musing voiced in our remand decision, to wit, it remains 
unclear to us just how incorporation of the Village of Mayfair 
Knollwood will be able to stop completion of the proposed project.

27



(quoting Lugar. 457 U.S. at 937) . It would be anomalous indeed for 

us to reach that conclusion here, particularly in light of the 

December 1 Decision, and we decline the invitation. Since the 

rights allegedly, deprived here are found in guarantees proscribing 

state action, and since state involvement with the conspiracy has 

not yet manifested itself in any meaningful way, plaintiffs' 

reliance on the deprivation clause of section 1985(3) is 

unavailing.

2. The Preventing-or-Hindering Clause

Alternatively, plaintiffs contend that COUP'S actions, if they 

do not "involve" the State, broadly "affect" the State and that 

this is sufficient to maintain a cause of action under the 

preventing-or-hindering clause of section 1985(3). Although we do 

not disagree with that conclusion, we find that the preventing-or- 

hindering clause is inapplicable to this case.

Scott held that, "to make out [a] § 1985 (3) case, it (is] 

necessary for [plaintiffs] to prove that the State was somehow 

involved in or affected by the conspiracy." Scott. 463 U.S. at 833 

(emphasis added). See also id. at 830 (must prove that "State is 

involved in the conspiracy or that the aim of the conspiracy is to 

influence the activity of the State"); id. at 831 (conspiracy must 

"somehow involve or affect a State"). The Scott Court considered 

section 1985(3) generally, and did not parse its various clauses.

28



Nonetheless, we think the "affect-a-State" language is obviously 

and primarily directed toward the preventing-or-hindering clause.21

We reach this conclusion because the preventing-or-hindering 

clause, by its terms, is designed to proscribe behavior that 

impedes the State's ability to safeguard equal protection. Thus, 

as this circuit has observed, it would be incongruous to require 

state involvement if the preventing-or-hindering clause is to be 

given effect since a State would rarely if ever be hindering its 

own efforts. People v. 11 Cornwell Co.. 695 F.2d 34, 43 (2d Cir. 

1982) . Consequently, and beyond those conspiracies depriving 

people of rights secured against private conduct, the language of 

section 1985(3) must be read to reach wholly private conspiracies 

which "affect" (i.e., prevent or hinder) the State's ability to 

secure equal protection. We think Scott so holds. Assuming the 

constitutional firmness of that construction, we find that the 

preventing-or-hindering clause is inapplicable to this case.

Section 1985(3) also includes two additional clauses 
based on preventing an individual from evidencing his or her 
support for presidential electors or members of Congress which, it 
appears, have rarely been invoked. A fifth and final clause of the 
statute merely outlines the remedy available and is not implicated 
by the analysis in Scott.

We hasten to emphasize that Scott did not address the 
underlying constitutional premise to this construction, to wit: 
If the preventing-or-hindering clause reaches wholly private 
conspiracies infringing equal protection rights, on what 
constitutional authority did Congress act in passing such a 
statute? Put differently, "the question [is] whether Congress has 
the power under section 5 of the Fourteenth Amendment to extend 
Fourteenth Amendment guarantees to purely private conduct." 11. 
Cornwell. 695 F.2d at 43. This issue has been left open by the 
Court, see Griffin. 403 U.S. at 107, and we need not pass upon it 
now given our ultimate holding.

29



In 11 Cornwell. the Second Circuit concluded that the 

preventing-or-hindering clause must reach private conspiracies 

since "there would almost never be a situation in which the State 

would be involved in hindering its own efforts to secure equal 

protection to its citizens . . . 11 Cornwell. 695 F.2d at 43

(emphasis added). The "almost-never" situation referenced by the 

court is, in our view, exactly the scenario manifested by the 

instant facts. The COUP defendants, in the absence of state 

involvement, cannot effectuate their goal of incorporating the 

Village of Mayfair Knollwood and, following therefrom, deprive 

plaintiffs of allegedly protected voting and housing rights. To 

the contrary, the town supervisor (who has been delegated initial 

review authority by the State pursuant to New York's Village Law, 

supra note 2) must first approve the petition and that approval, 

if challenged, must then survive review by the State courts via an 

Article 78 proceeding. Until the State acts, therefore, either 

through the town supervisor or the State courts, the COUP petition 

cannot prevent or hinder the State in its efforts to secure equal 

protection of the laws (assuming the validity of the substantive 

deprivations here alleged). Put differently, the State must 

affirmatively act in this case if equal protection rights are to 

be infringed, bringing these facts within the "almost-never" 
situation alluded to in 11 Cornwell. The preventing-or-hindering 

clause, therefore, is inapplicable.
This analysis, it seems to us, is further compelled by section 

1985(3)'s injury requirement. For a cognizable claim to exist, the

30



*

statute, outlined supra, requires an act in furtherance of the 

conspiracy which injured plaintiff in his or her person or 

property. The Supreme Court has referred to the injury requirement 

as a jurisdictional element of a section 1985(3) claim. See Scott. 

463 U.S. at 828-29 (citinq Griffin. 403 U.S. at 103) . Cf. Nalle 

v. Oyster. 230 U.S. 165, 182 (1913) (noting "well-settled rule is 

that no civil action lies for a conspiracy unless there be an overt 

act that results in damage to the plaintiff") (emphasis added). 

Whatever else Scott or 11 Cornwell may hold as to private 

conspiracies under section 1985(3), they could not and did not 

vitiate the statutory injury requirement in such cases. Thus, 

since we believe that no cognizable injury can result here or even 

be sufficiently threatened until the State acts to give effect to 

COUP•s efforts, supra Section 11(a), the preventing-or-hindering 

clause cannot be applicable on these facts unless the 

jurisdictional prerequisite of injury is to be read out of the 

statute. Yet, if plaintiffs' broad reading of Scott is correct 

(i.e., the alleged conspiracy is actionable simply because it 

affects the State even though not one of the conspiracy's purported 

harms can be effected without State assistance), then that would 

very much be the result here.23

We add that since not even threatened injury is 
cognizable here, we need not decide whether threatened injury alone 
is sufficient to sustain a claim under section 1985(3). We may 
assume that it is (notwithstanding our reservations to the 
contrary), for even that lessened threshold cannot be met here.

31



4

Plaintiffs rely for their argument on a trilogy of cases in 

which the preventing-or-hindering clause was invoked in support of 

claims against private conspiracies. Each case, however, 

represents what we believe to be the paradigmatic facts amenable 

to a claim under this clause, viz, a claim where private parties, 

on their own accord and without need of affirmative State 

assistance in furtherance of the conspiracy's efforts, were able 

to affect the State's ability to safeguard equal rights. Reliance 

on those case, therefore, is inapposite. See 11 Cornwell. 695 F.2d 

at 43 (colorable preventing-or-hindering claim where private 

conspirators had bought at private sale a home they knew the State 

had already targeted for use in the effort to deinstitutionalize 

mentally retarded persons, and the conspirators thereafter refused 

to sell the home to the State for the envisioned use); Brewer v. 

Hoxie School Dist. No. 46. 238 F.2d 91, 93-94, 103-05 (8th Cir. 

1956) (private conspiracy had prevented and hindered school board 

in carrying out desegregation effort where conspirators had already 

committed numerous acts of trespass on school property, threatened 

and intimated board members, and attempted to persuade students to 

boycott schools, thereby causing cancelation of a school session, 

reduction in school attendance, and loss of school revenues); New 

York State Nat'l Ora, for Women v. Terry. 704 F. Supp. 1247, 1260 

(S.D.N.Y. 1989) (anti-abortion protesters were impeding State's 

ability to secure for "women who choose abortion equal access to 

medical treatment" through unannounced, mass protests at abortion 

clinics that were designed to and did impede state's efforts to

32



4

ensure access to those clinics) .24 The crucial feature

distinguishing this case is that COUP cannot hinder the State in 

its efforts to secure equal protection unless and until the State 

approves the incorporation petition. Indeed, as evidence of that 

fact, we were told at oral argument that the housing project is 

moving forward apace, with an environmental review now underway.

Consequently, we find that plaintiffs have failed to state a 

claim under section 1985(3).25

III. ATTORNEY'S FEES OR SANCTIONS
The COUP defendants move for attorney's fees under 42 U.S.C. 

§ 1988 ("section 1988") or sanctions under Rule 11. We may award 

a prevailing defendant attorney's fees under section 1988 if the 

complaint was unreasonable, frivolous, or groundless, Eastwav 

Constr. Coro, v. City of New York. 762 F.2d 243, 252 (2d Cir.

We add that in each of these cases the state actor 
allegedly being hindered was a named or intervening plaintiff. In 
this case the state actor (Town Supervisor Veteran) is a named 
defendant. Since we find the preventing-or-hindering clause 
inapplicable in any event, we do not ascribe any significance to 
this fact (although it adds certain confirmation to our conclusion 
that this is really a deprivation clause case).

Having found that the absence of state action in this 
case dooms the section 1985(3) counts, we do not conclusively 
address whether the deprivation of the state rights here asserted 
may alone serve as the predicate for a section 1985(3) count. See 
Scott. 463 U.S. at 833-34 (generally leaving open that question); 
Traqqis v. St. Barbara's Greek Orthodox Church. 851 F.2d 584, 586- 
91 (2d Cir. 1988) (same) . Nor do we address whether all of the 
underlying rights herein alleged, federal or state, may serve as 
predicates for a section 1985(3) claim.

33



♦
#-

1985) , and sanctions under Rule 11 if the complaint was not 

reasonably believed to be grounded in law or in a good-faith 

argument for the law's extension, id. at 254. Neither test has 

been met here.

Although we have disagreed with the arguments made by 

plaintiffs' counsel, we think the arguments made were reasonable 

and in good faith and the case touches (albeit prematurely) on 

matters involving certain substantial and important federal rights. 
Consequently, we think an award of fees or sanctions would be both 

improvident and unsupported, and the motions are denied.

Conclusion

For all of these reasons, we hold that, as to the COUP 

defendants, this case is not yet ripe for decision or, 

alternatively, that a cognizable federal claim has not been 

asserted. In reality, of course, our holding as to subject matter 

jurisdiction is largely the substantive manifestation (no state 

action) of the procedural infirmity (ripeness) that afflicts this 

case. Simply put, we believe that until the State acts to give 

some effect to COUP'S incorporation efforts, this matter is simply 

inappropriate for judicial intervention. Not only does this 

conclusion reflect both our concern for federalism and our respect 
for the political process, the predominant currents running through 

our remand decision, but it is bottomed on legal principles that 

determine when and why a Federal court may act to issue injunctive 

relief and award compensatory damages, the issues relevant here.

34



4 A

Counts I

Dated:

, II, and III of the FAC, therefore, are dismissed.

SO ORDERED.

White Plains, N.Y. 
June 28, 1989

A . .
GERARD L. GOETTEL

U.S.D.J.

35



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true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as 
to those matters I believe it to be true. The reason this verification is made by me and not by

The grounds of my belief as to all matters not stated upon my own knowledge are as follows:

I affirm that the foregoing statements are true, under the penalties of perjury.
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STATE OF NEW YORK, COUNTY OF ss.:
I, being sworn, say: I am

in the within action; 1 have read the foregoing
and know the contents thereof; the same is true to my own knowledge, except as to 

the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true, 
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a corporation and a party in the within action; I have read the foregoing

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except as to the matters therein stated to be alleged upon information and belief, and as to those matters I believe 
it to be true. This verification is made by me because the above party is a corporation and 1 am an officer thereof. 

The grounds of my belief as to all matters not stated upon my own knowledge are as follows:

I □ Individual
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Sworn to before me on 19 .........................................................................
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STATE OF NEW YORK, COUNTY OF ss.: ( If both boxes are checked indicate after names, type of service used.)

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by delivering a true copy thereof personally to each person named below at the address indicated. 1 knew each 
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Sworn to before me on 19
The name signed must be printed beneath



t

Index No. 88 CIV 7738 (GL&^r 19 89
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK=  ►=

YVONNE JONES, et al.,

Plaintiffs,
-against-

LAURENCE DEUTSCH, et al., 

Defendants.

NOTICE OF ENTRY OF OPINION AND ORDER

Q U I N N  &  S U H R  
Attorneys fo r Defendant

Office and Post Office Address, Telephone 
170 HAMILTON AVENUE  

W h i t e  P l a i n s , N e w  Y o r k  1 0 6 0 1  

(9 1 4 )  9 4 9 - 0 8 0 0

To

Attorney(s) for

Service of a copy of the within is hereby admitted.

Dated,

Attorney(s) for

Sir:— Please take notice
□  ryD T IC E O F  EN TRY

that the within is a (certified) true copy of ^  OPINION AND ORDER 
duly entered in the office of the clerk of the within named court on j une 28
□  N O TIC E O F  S E T T L E M E N T

that an order of which the within is a true copy will be presented for
settlement to the HON. one of the judges
of the within named court, at
on 19 at M.

Dated, WHITE PLAINS , NY 
JUNE 2 8 , 1989

To Counsel of Record
Attorney(s) for

Yours, etc.

Q U I N N  &  S U H R
Attorneys for

Office and Post Office Address 
170 HAMILTON AVENUE  

W h i t e  P l a i n s , N e w  Y o r k  1 0 6 0 1

1 3 0 1  — JU L IU S  B LU M BER G , INC., LAW  BLANK PU B LIS H E R S. NYC 1 0 0 1 3