Cox v. Katz Petition for a Writ of Certiorari to the Court of Appeals of the State of New York

    V 
.

1ST THE

Bupvmt §uurt at tl|r MnlUb Btmn
October Term  1368

D ock et N o.

M ARG ARET COX, H OW ARD R. M OODY, A L E X  J. ROSEN­
BERG. HUMBERTO APONTE, PAUL KERRIGAN, AN ­
DREW  COOPER, STANLEY H A R R Y  HAM ILTON, PETER 
WEISS and BEATRICE JONES, individually and on behalf of 
all other citizen-electors of the City of New York,

Petitioners,
against

HERMAN KATZ, City Clerk of the City of New York and JAMES 
M. POWER. THOMAS MALLEE, M AURICE J. O ’ROURKE 
and J. J. DUBERSTEIN. Commissioner of Election, constituting 
the Board of Elections in the City of New York and ATTO RN EY 
GENERAL OF THE STATE OF NEW YORK,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF THE STATE OF 

NEW YORK

M ilton H. Friedman 
M arshall Berlin 

36 West 44th Street
New York, New York 10036 

Attorneys for Petitioners



I N D E X

Jurisdiction ........................................................................... 2
Questions Presented ...........................................................  2

The Constitutional Provisions and Statutes Involved 4

New York City Civil Court .......................................... 6
An Act to Provide for the Transfer of Judges to 

the Civil Court of the City of New York, the 
Number of Judges of Said Court and the Fill­
ing of Vacancies........................................................... 7

Amendment to the Act to Provide for the Transfer 
of Judges to the Civil Court of the City of New 
York, the Number of Judges of Said Court and 
the Filling of Vacancies ...........................................  8

Additional Judges Act ...................................................  9

Statement of the Case ......................................................  10
The Consequences of the Use of the Abolished 

Municipal Court Districts ........................................  14
The Consequences of the Use of the Abolished City

Court Districts ............................................................ 16
The Denial of the Constitutional Eight to A  Pri­

mary and Independent Party Candidates..........  17

The Presentation of Federal Questions ....................  18

The Belief Requested .................................................... 18

Reasons for Granting the Writ ......................................  19

Conclusion  ..................................................   27

PAGE



11

Table o f Cases Cited

Baker v. Carr, 369 U.S. 186 ........................................ 20, 21

Bell v. Southwell, (C.A. 5) 376 F. 2d 659 . .. .20, 24, 26, 27
Buchanan v. Rhodes, 249 F. Supp. 860, Appeal dis­

missed, 385 U.S. 3 .....................................................  22n

Ex Parte Yarborough, 110 U.S. 6 5 1 ............................ 21

Gomillon v. Lightfoot, 364 U.S. 339 ............................ 21

Hamer v. Campbell, (C.A. 5) 358 F. 2d 215, cert. den.
385 U.S. 8 5 1 .................................................................  26

Jones v. Alfred H. Mayer & Co., 392 U.S. 409 ..........22, 22n

Kail v. Rockefeller, 275 F. Supp. 937 .......................... 22n

Lane v. Wilson, 307 U.S. 268 ...................................... 21

New York State Association of Trial Lawyers 
v. Rockefeller, 267 F. Supp. 148 ............................ 22n

Nixon v. Condon, 286 U.S. 63 ....................................  21
Nixon v. Herndon, 273 U.S. 536 ...................................  21

Smith v. Allwright, 321 U.S. 649 .............................. 21
Stokes v. Forston, 234 F. Supp. 575 .......................... 22n

Terry v. Adams, 345 U.S. 461 .....................................  21

United States v. Classic, 313 U.S. 299 ........................ 21
United States v. Mosley, 238 U.S. 373 ........................ 21

Williams v. Rhodes, — U.S. — 89 S.C. 5 .................. 25

Yick Wo v. Hopkins, 118 U.S. 356 .............................. 20, 25

PAGE



I l l

Constitutional Provisions Cited

U nited  S tates C o n st it u t io n :

First Amendment ................................................. 4,10, 25
Thirteenth Amendment..............4,10,18, 20, 22, 22n, 24
Fourteenth Amendment . . .  .4,10,18, 20, 22, 22n, 24, 25 
Fifteenth Am endm ent................4,10,18, 21, 22, 22n, 24

C onstitution  oe t h e  S tate op N ew  Y ork  :

Article I, Section 1 ................................................ 4
Article I, Section 11 .............................................  4
Article II, Section 1 .............................................. 4
Article VI, Section 1 .............................................  5,11
Article VI, Section 15 ....................................... 5,11,16
Article VI, Section 21 .......................................... 6
Article VI, Section 35 .........................................  6,11

Statutes Cited

28 U.S.C. 1257 .................................................................  2
L aw s of N ew  Y o r k :

L. 1962, C. 693 ....................................................... 6,11,12
L. 1962, C. 694 ...................................................... ..7 ,8 ,12
L. 1963, C. 848 ........................................................  8,12
L. 1964, C. 377 ......................................................... 8
L. 1965, C. 190 ......................................................... 8
L. 1966, C, 109 ........................................................  8
L. 1967, C. 39 ........................................................... 8
L. 1968, C. 152 Sec. 4 ............................................. 8
L. 1968, C. 987 ......................................................... 9,25

Other Authorities Cited
McKinney, New York Laws of 1962, p. 3655 .............. 12

PAGE



IN  THE

tiuntri nf %  MnlUh States
O ctob er  T erm  1968 

D ock et No. ______ ____

M argaret C ox, H oward R . M oody, A lex  J. R osenberg, 
H umberto  A pon te , P au l  K errigan , A ndrew  C ooper, 
S tanley  H arry  H am ilto n , P eter W eiss and B eatrice 
J ones, individually and on behalf of all other citizen- 
electors of the City of New York,

Petitioners,
against

H erm an  K atz , City Clerk of the City of New York and 
J ames M. P ow er, T homas M allee , M aurice J. 
O ’R ourke and J. J. D uberstein , Commissioners of 
Election, constituting the Board of Elections in the 
City of New York and A ttorney  General  of t h e  S tate 
of N ew  Y ork ,

Respondents.
------------------------------o------------------------------

PETITION FOR A WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF THE STATE OF 

NEW YORK

Petitioner prays for a writ of certiorari to review a 
final judgment and order of the Court of Appeals of the 
State of New York, which affirmed an order of dismissal 
of the Appellate Division, First Department, of the State 
of New York, which in turn affirmed an order by the 
Supreme Court of the State of New York, County of New 
York.

The opinion of the Supreme Court of the State of New 
York, New York County, is not officially reported. The 
order was made and entered on August 29, 1968. A  copy



2

is attached hereto (Appendix i). The opinion of the Ap­
pellate Division, First Department was rendered on Sep­
tember 19, 1968, 30 A.D. 2d 432 (Appendix ii). The opinion 
of the Court of Appeals affirming the lower courts was 
rendered on October 4, 1968, 22 N.Y. 2d 903 (Appendix iii). 
The remittitur and order of the Court of Appeals is dated 
October 4, 1968 (Appendix iv). The Court of Appeals 
acknowledged in an amendment to the remittitur that fed­
eral questions under the Constitution of the United States 
were involved and raised and considered. Said amend­
ment is dated October 17, 1968 (Appendix v).

Jurisdiction

The order of the Court of Appeals of the State of New 
York was entered on October 4, 1968. On December 30, 
1968 the time for filing a writ of certiorari herein was 
extended to and including February 1, 1969 by order of 
Mr. Justice Harlan. The jurisdiction of this court is 
invoked pursuant to the provisions of 28 U.S.C. Section 
1257.

Questions Presented

Where a state legislature establishes a single city-wide 
judicial district and provides that the judges thereof be 
elected from irrational electoral geographic subdivisions 
of said judicial district divided without any relation to 
volume of litigation or location of courthouse or any other 
aspect of the administration of justice,

1. Does such state legislation violate the voting 
rights of the Negro and Puerto Rican people con­
trary to the First, Thirteenth, Fourteenth and 
Fifteenth Amendments to the Constitution of the 
United States, in that the electoral subdivisions with 
predominantly white people has substantially greater



3

voting power for such judges and may elect more 
judges than those subdivisions where Negro and 
Puerto Rican residents preponderate.

2. Does such state legislation in granting sub­
stantially greater voting power for such judges of 
certain counties of such judicial districts greater 
than the voting powers for such judges of the res­
idents of other counties of such judicial district 
violate the one man-one vote principal and un­
constitutionally discriminate against the people 
whose votes are thus debased.

3. Are the elections of judges under any circum­
stances exempted from the one man-one vote prin­
cipal including the circumstances as above described.

4. Where the state statutes direct that the last 
date for filing independent nominating petitions for 
candidates for particular state judicial offices is 
earlier than the last date for making party nomina­
tions for such offices, so that the party candidates are 
chosen after the expiration of time to make independ­
ent nomination, and no primary elections are pro­
vided for, does such legislation invidiously discrimi­
nate against voters who may disapprove of the 
nominations made by the party leaders and un­
constitutionally deprive such voters of the right and 
opportunity to make a knowledgeable independent 
nomination and to associate for such purpose, and 
impair their right to vote contrary to the First 
Amendment and the Equal Protection Clause of the 
Fourteenth Amendment.



4

The Constitutional Provisions and Statutes Involved

The First, Thirteenth, Fourteenth and Fifteenth amend­
ments of the United States Constitution.

The Constitution of the State of New York:
Article I, Section 1.

“  [Eights, privileges and franchise secured.]— 
No member of this state shall be disfranchised, or 
deprived of any of the rights or privileges secured 
to any citizen thereof, unless by the law of the land, 
or the judgment of his peers, except that the legis­
lature may provide that there shall be no primary 
election held to nominate candidates for public office 
or to elect persons to party positions for any politi­
cal party or parties in any unit of representation 
of the state from which such candidate or persons 
are nominated or elected whenever there is no con­
test or contests for such nominations or election 
as may be prescribed by general law.”
Article I, Section 11.

“ [Equal protection of laws; discrimination in 
civil rights prohibited.]— No person shall be denied 
the equal protection of the laws of this state or any 
subdivision thereof. No person shall, because of 
race, color, creed or religion, be subjected to any 
discrimination in his civil rights by any other person 
or by any firm, corporation, or institution, or by the 
state or any agency or subdivision of the state.”
Article II, Section 1.

“ [Qualifications of voters.]— Every citizen shall 
be entitled to vote at every election for all officers 
elected by the people and upon all questions sub­
mitted to the vote of the people provided that 
such citizen is twenty-one years of age or over and 
shall have been a resident of this state and of the 
county, or village for three months next preceding 
an election.



5

Not withstanding the foregoing provisions, after 
January first, one thousand nine hundred twenty- 
two, no person shall become entitled to vote by 
attaining majority, by naturalization or otherwise 
unless such person is also able, except for physical 
disability, to read and write English.”
Article VI, Section 1.

“ [Unified court system for state.]—a. There 
shall be a unified court system for the state. The 
state-wide courts shall consist of the court of ap­
peals, the supreme court including the appellate 
divisions thereof, the court of claims, the county 
court, the surrogate’s court and the family court, 
as hereinafter provided. The legislature shall 
establish in and for the city of New York, as part 
of the unified court system for the state, as a single, 
city-wide court of civil jurisdiction and a single, 
city-wide court of criminal jurisdiction, as herein­
after provided, and may upon the request of the 
mayor and the local legislative body of the city of 
New York, merge the two courts into one city-wide 
court of both civil and criminal jurisdiction.”  # *
Article VI, Section 15.

“ [New York city courts.]—a. The legislature 
shall by law establish a single court of city-wide 
civil jurisdiction and a single court of city-wide 
criminal jurisdiction in and for the city of New 
York and the legislature may, upon the request of the 
mayor and the local legislative body of the city of 
New York, merge the two courts into one city-wide 
court of both civil and criminal jurisdiction. The 
said city-wide courts shall consist of such number 
of judges as may be provided by law. The judges of 
the court of city-wide civil jurisdiction shall be 
residents of such city and shall be chosen for terms 
of ten years by the electors of the counties included 
within the city of New York from districts within 
such counties established by law.”  * * #



6

Article VI, Section 21.
“  [Vacancies.] * * * c. When a vacancy shall occur, 

otherwise than by expiration of term, in the office 
of judge elected to the city-wide court of civil juris­
diction of the city of New York, it shall be filled 
for a full term at the next general election held 
not less than three months after such vacancy occurs 
and, until the vacancy shall be so filled, the mayor 
of the city of New York may fill such vacancy by an 
appointment which shall continue until and including 
the last day of December next after the election at 
which the vacancy shall be filled. When a vacancy 
shall occur, otherwise than by expiration of term 
on the last day of December of any year, in the office 
of judge appointed to the family court within the 
city of New York or the city-wide court of criminal 
jurisdiction of the city of New York, the mayor of 
the city of New York shall fill such vacancy by an 
appointment for the unexpired term.”
Article VI, Section 35.

“ [Abolition of certain courts.] * * * c. The 
legislature shall provide by law that the justices 
of the city court of the city of New York and 
the justices of the municipal court of the city 
of New York in office on the date such courts are 
abolished shall, for the remainder of the term for 
which each was appointed, by judges of the city­
wide court of criminal jurisdiction of the city of 
New York established pursuant to section fifteen 
provided, however, that each term shall expire on 
the last day of the year in which it would have ex­
pired except for the provisions of this article.”

New York City Civil Court (Laws 1962, Chapter 693)
“ Section 102. Court established. The Civil 

court of the city of New York is hereby established 
as a single city-wide court as provided by Section 
1 and 15 of Article Six; with such power and jur­
isdiction as are herein provided by law. The court 
in each county of the city shall have an official seal 
on which shall be engraved the arms of the state, 
the name of the court and the county.”



7

“ Section 2201. Justices of abolished court to be 
justices of this court. The justices of the city court 
of the city of New York and the justices of the mu­
nicipal court of the city of New York in office on 
the date such courts are abolished shall, for the re­
mainder of the term in which each was appointed 
or elected to be justices for this court.”

“ Section 2207. Predecessor Courts Act repealed. 
The city court of the city of New York and the mu­
nicipal court of the city of New York are hereby 
abolished. The New York City Court Act and the 
New York City Municipal Court Code and all acts 
amendatory thereof are hereby repealed, and the 
rules of the city court of the city of New York and 
the municipal court of the city of New York are 
hereby abrogated.”

An Act to Provide for the Transfer of Judges to the 
Civil Court of the City of New York, the Number 

of Judges of Said Court and the Filling of 
Vacancies (Law 1962, Chapter 694)

“ § 1. [Judges of civil court of city of New York]
The civil court of the city of New York shall con­

sist of ninety-five judges, all of whom shall be resi­
dents of the city of New York. No person may be 
chosen as a judge of this court after the effective 
date of this act unless he has been admitted to prac­
tice law in this state for ten years. The judges of 
this court shall be elected for terms of ten years.
“ §2. [Transfer of justices]

The justices of the city court of the city of New 
York and the justices of the municipal court of the 
city of New York in office on August thirty-first, nine­
teen hundred sixty-two shall, for the remainder of 
the term for which each was elected or appointed, 
be judges of the civil court of the city of New York.
“ §3. [Vacancies other than by expiration of term]

A vacancy occurring otherwise than by the ex­
piration of term in the office of judge of the civil 
court of the city of New York shall be filled by the 
mayor of the city of New York by an appointment



8

which shall continue until and including the last day 
of December next after the election at which the 
vacancy shall be filled.
“ '§4. [Vacancies by expiration of term]

Vacancies in the office of judge of the civil court 
of the city of New York occurring by the expiration 
of the term on the last day of December, nineteen 
hundred sixty-two of a justice elected or appointed 
to the city court of the city of New York or the 
municipal court of the city of New York, who was 
continued as a judge of the civil court pursuant to 
the provisions of subdivisions c of section thirty-five 
of article six of the constitution, shall be filled for a 
full term at the general election to be held in Novem­
ber, nineteen hundred sixty-two. Judges to fill such 
vacancies shall be chosen by the electors of the county 
or district from which the judge whose term expires 
on December thirty-first, nineteen hundred sixty-two, 
was elected or appointed.”

Amendment to the Act to P rovide  fo r  the T ran sfer 
of Judges to the Civil Court o f  the C ity o f  N ew  

York, the Number of Judges o f  Said C ourt and 
the Filling of V acan cies . (Laws 1968,

Chapter 152, Section 4*)
“ § 4. [Vacancies by expiration of term.] Vacan­

cies in the office of judge of the civil court of the city 
of New York occurring by the expiration of the term 
on the last day of December, nineteen hundred sixty- 
eight of a justice elected or appointed to the city 
court of the city of New York or the municipal court 
of the city of New York, who was continued as a 
judge of the civil court pursuant to the provisions 
of subdivision c of section thirty-five of article six of

* In 1963 the language of Section 4 was changed by inserting 
the phrase after the word “ constitution” , “or of their successors” 
(top line next page), and there was inserted the phrase “ or his 
predecessor.” (near the end of the quotation next page) In addi­
tion, from year to year the year “ 1962” appearing in the text of 
L. 1962 C. 694 § 4 was amended to “ 1963,” “ 1964,” “ 1965,”  “ 1966,” 
“ 1967” and “ 1968.”  Law 1963, Chapter 848 ; Law 1964, Chapter 
377; Law “ 1967,”  and “ 1968.” Law 1963, Chapter 848; Law 1964, 
Chapter 377; Law 1965, Chapter 190; Law 1966, Chapter 109; Law 
1967, Chapter 39.



9

the constitution, or of their successors, shall he filled 
for a full term at the general election to be held in 
November, nineteen hundred sixty-eight. Judges to 
fill such vacancies shall be chosen by the electors of 
the county or district from which the judge whose 
term expires on December thirty-first, nineteen hun­
dred sixty-eight, or his predecessor, was elected or 
appointed. ’ ’

Additional Judges Act (Law 1968, Chapter 987**)
“ § 14. Section one of chapter six hundred ninety- 

four of the laws of nineteen hundred sixty-two, en­
titled ‘ An act to provide for the transfer of judges to 
the civil court of the city of New York, the number 
of judges of such court and the filling of vacancies,’ 
as amended by chapter forty-five of the laws of nine­
teen hundred sixty-five, is hereby amended to read as 
follows:

Section 1. The civil court of the city of New York 
shall consist of one hundred twenty judges, all of 
whom shall be residents of the city of New York. No 
person may assume the office of judge of this court 
after the effective date of this act unless he has been 
admitted to practice law in this state for ten years. 
The judges of this court shall be elected for terms of 
ten years.

The twenty-five additional judges of the civil court 
of the city of New York authorized on the effective 
date of this act shall be elected in and from the resi­
dents of the following counties in the indicated num­
bers: from the county of New York, seven; from the 
county of Kings, seven; from the county of Queens, 
six; from the county of Bronx, four; and from the 
county of Richmond, one. Such additional judges 
shall receive the same compensation as the existing 
judges of the civil court of the city of New York.”

** This statute has a title approximately 30 lines long but is 
generally referred to as the Additional Judges Act, enacted in May 
1968 and approved on June 22, 1968.



10

Statement of the Case

This action was instituted on August 15, 1968 by electors 
of the City of New Yoi’k, Negro, Puerto Rican and white, 
seeking a declaratory judgment and temporary and perma­
nent injunctive relief to prevent an election of civil court 
judges said to be violative of the United States Constitution 
as well as that of the Constitution of the State of New 
York. Brought into issue are certain state statutes which 
pertain to the election of civil court judges, a public office.

The petitioners allege, upon uncontested facts, that the 
procedure established for the election of civil court judges 
of the City of New York is in violation of the First, Thir­
teenth, Fourteenth and Fifteenth Amendments of the 
United States Constitution.* The provisions of the State 
Constitution, as applied, raise the same federal questions.

The petitioners contend that:

(a) The statutes providing for the election of 
civil court judges invidiously discriminate, with no 
justification or compelling state interests, against 
the Negro and Puerto Rican voters of the city of 
New York.

(b) The method of election of civil court judges, 
based on no rational reason, violate the principle of 
one man-one vote in the selection of judges.

(c) The complex of election law provisions at 
issue effectively deprives the electors of any mean­
ingful opportunity either to enter a primary, to 
make an independent nomination, or to organize an 
independent political party candidate for the elective 
office of civil court judge.

This action was instituted for interim and final relief 
was denied by the Court of Appeals on October 4, 1968,

*A11 of the facts are alleged in the pleadings, and as to those 
few not so stated they are of such a nature that the Court may take 
judicial notice.



11

at a time when it was impossible under the election laws to 
place any independent candidate or insurgent party nom­
inee on the ballot for the general election held November 5, 
1968.

Effective September 1, 1962, Article VI, the judiciary 
article of the New York Constitution, was amended pro­
viding inter alia (§ 1 and § 15a) for a single New York 
city-wide court of civil jurisdiction. The Constitution’s 
residence requirement is merely that the judge reside any­
where in the city of New York.

The State constitution mandates that the judges “ shall 
be chosen for terms of 10 years by electors of the county 
included within the city of New York from districts within 
such counties established by law”  (emphasis supplied).

Prior to the amendment of Article VI of the Constitution 
there were two city courts of limited jurisdiction. The 
municipal court had districts of varying sizes and numbers 
of justices within each county and courthouses in each dis­
trict, The city court had county-wide districts in each of 
the five counties with the number of justices varying from 
county to county.

§ 35 of Article V I expressly abolished the then existing 
city court and municipal court. In 1962, a single city-wide 
civil court was created by statute (Laws of 1962, Chap. 
693). The statute specifically abolished the city and muni­
cipal courts (§2201). The legislature failed to create 
electoral districts within each county for the election of 
civil court judges as was required by the Constitution in 
1962.

The need to create such districts under the Constitu­
tion was acknowledged by the Governor when he signed 
the Civil Court Act. He stated:

“ Section 15 of the new Constitutional Amend­
ment requires the Legislature to establish the dis­
tricts from which judges of the new court are to 
be elected. Exigencies of time did not permit the



12

full implementation of this provision at the 1962 
session. It is expected that such legislation will be 
presented at the 1963 session.”  McKinney, New 
York Laws of 1962, p. 3655. (Emphasis supplied)

To permit the transition from the old court system to 
the single city wide court in 1962, and awaiting the creation 
of districts in 1963, Chap. 694 of the Laws of 1962 was 
enacted. § 4 provided that where vacancies were created 
by expiration of term, such vacancies in the courts to be 
abolished at the end of 1962 would be filled in November 
1962 and that such judges would be chosen by the electors 
“ of the County or district”  from which the judge whose 
term expired at the end of 1962 had been elected. Evan as 
an interim provision its constitutionality is questionable. 
Any civil court judge, regardless of the place of his elec­
tion, can be and is assigned to any of the civil courthouses 
in the several counties of the city. They usually are 
assigned or “ allocated”  on the basis of the needs of the 
various divisions of the court. There is no contention by 
the petitioners that this is improper.

By reason of jurisdictional and venue provisions, a 
resident of any of the counties of the city of New York 
may sue or be sued in any of the counties of the city, In 
each of the counties there is a single civil courthouse.

Thus it is clear that the only purpose of the requirement 
to create districts is to provide for the process of elect­
ing judges. The Constitution requires “ electoral dis­
tricts” , not “ judicial districts”  in that there is only one 
“ judicial district” , the City of New York.

The Legislature did not live up to the Governor’s ex­
pectations and has not to this day created the requisite 
electoral districts within each county. Bills were intro­
duced but failed of passage because the political parties 
could not agree for partisan and other reasons. In 1963 
the legislature revised 4 of the Laws of 1962, Chap. 694, 
by changing the words “ nineteen sixty-two”  to “ nineteen 
sixty-three” , and repeated the amendments from year to



13

year, the section now reading “ nineteen sixty-eight” . In 
1963 § 4 was also amended by inserting the phrase “ or of 
their predecessors”  and “ or of their successors” . This 
was an attempt to distort the very purpose of the Law of 
1962, Chap. 694, which bears the following title:

“ An act to provide for the transfer of judges to 
the civil court of the city of New York, the number 
of judges of said court and the filling of vacancies.”

Since no electoral districts were created for civil court 
judges, the respondents and the legislators have used the 
transition aspects of the statute as justification to use the 
abolished municipal court districts for the election of civil 
court judges. The unfortunate consequence, in violation 
of the federal Constitution, is the foundation of this ac­
tion.

Until 1968, 68 judges had been elected from the “ munic­
ipal court districts” , which had been multi-office, within 
each county, and 27 judges on the basis of the city court 
“ districts” , multi-office and county-wide. When the Addi­
tional Judges Act came into being, on June 22, 1968, after 
the spring primary elections, 25 additional judges for the 
civil court were provided. New York county was given 7, 
Kings county 7, Queens county 6, Bronx 4, and Richmond 
1. No provision for electoral districts within each county 
was made. The political leaders of the counties of New 
York City opted to nominate by executive committee 
multi-party candidates for civil court judge, and the nom­
inations were filed on September 23, 1968. No primary elec­
tion was provided for, and indeed anyone wishing to run 
on an independent ticket was without knowledge of who the 
partys’ nominees were to be on September 9th, when inde­
pendent petitions were required to be filed.



14

The Consequences of the Use of the Abolished 
Municipal Court Districts.

The municipal court districts until 1945 were occa­
sionally recast and the number of judges changed. No 
material changes had been made in any of the municipal 
court districts for 24 years. Yet, in view of demographic 
changes since that time,* the use of these old districts to 
elect civil court judges has resulted in invidious discrimina­
tion against the Negro and Puerto Rican people and their 
right to an effective franchise.

The census data and other governmental reports re­
ferred to in the pleadings and undisputed on this record, 
and this Court may take judicial notice of the fact that 
there are large ghetto areas in the City of New York, as 
indeed there are ghetto areas in every major urban popula­
tion center throughout the nation. In New York City both 
the Puerto Rican and Negro people are forced to live in 
ghettos—ghettos created by a multiplicity of factors, all 
arising out of racial and color discrimination, “ a relic of 
slavery” , a “ custom of slavery” , a “ spectacle of slavery 
unwilling to die” .

The Negro and Puerto Rican people are still discrimi­
nated against in housing regardless of all of the statutes on 
the books and the decisions of this Court. This discrimina­
tion is also reflected in employment and education. Harlem 
and East Harlem are known by all to be Negro and Puerto 
Rican ghetto areas. Bedford-Stuyvesant perhaps may be 
said to be the largest and most rapidly growing ghetto both 
in geographic area and population, approaching 500,000. It 
is rapidly being matched by other ghetto areas, particularly 
in Bronx County.

In the present record, particular detail is set forth as to 
the make-up of the population of New York City. Such 
relationship to the “ municipal court districts’ ’ of New

* W e do not discuss constitutional informities in the abolished 
districts prior to 1962.



15

York county is specifically set forth. In 1960 the popula­
tion of that county was 1,681,400. The Negro population 
was 410,300 (24.4%); the Puerto Rican population was
222.000 (13.2%) for a total of 37.6%. Attached to this peti­
tion Exhibit A  sets forth the total population of New York 
County as of 1960 by municipal court districts, the make-up 
of that population and the number of judges elected from 
each abolished municipal court district. Exhibit B sets 
forth the geographic area covered by the districts.

In the Ninth District of Manhattan where the white 
population is 95%, the ratio to population of judges is 
16,700 to 1. This district of 100,0000 elects 6 civil court 
judges. Yet in the Tenth District, which is approximately 
95% Negro and Puerto Rican, and which in 1960 had a 
population of approximately 180,000, only 2 civil court 
judges are elected, the ratio of population to judges being
89.000 to 1.

This racial and color discrimination in the electoral 
process serves no purpose except to give the white elector 
in the Ninth District the power to elect more judges and to 
make each individual vote in a white district worth six times 
that of a contiguous Negro and Puerto Rican district. East 
Harlem, the Eighth District, which has approximately the 
same number of people as the Ninth District, 107,000, and 
which is 78% Puerto Rican and Negro, elects 2 civil court 
judges at a ratio of population to judge of 53,000 to 1. 
Its voting power is one third that of the Ninth District, 
the white district.

In the Second District which is 70.4% white, with a 
population of 205,000, 5 civil court judges are elected. The 
First District which is 87% white, having a population of 
80,000, elects 3 judges. The Third District of 102,000, 80% 
white, elects 4 judges. The Fourth District of 112,000, 95% 
white, elects 3 judges.

Thus, in 5 districts overwhelmingly white, the smallest 
percentage being 70%, the greatest percentage being 95%,



16

21 civil court judges are elected at a ratio of 30,000 to 1 
while in the two ghetto districts, the Eig’hth and Tenth,
287.000 people elect 4 civil court judges at a ratio of 70,000 
to 1.

Whether the state action is premeditated or not® the 
facts are beyond dispute; and the effect of state action 
resulting in discrimination against those forced to live in 
ghetto areas is not denied.

All of the above, constitutes a violation of the First, 
Thirteenth, Fourteenth and Fifteenth Amendments of the 
Constitution. The New York Court of Appeals construc­
tion of Article V I of the State Constitution constitutes a 
violation of the Federal Constitution as applied.

The petitioners do not request that the required elective 
districts be drawn on racial lines but solely that they be 
drawn in such fashion as to be compact, contiguous districts 
premised upon the principal of one-man, one-vote. Each 
civil court judge should be elected from a separate district.

The C onsequences o f  the Use o f  the A bolish ed  
City Court Districts.

Using the population figures as of 1966 county by county 
and as a result of the Additional Judges Act, we find the 
following: New York County, with a population of 1,494,000 
elects 50 civil court judges at a ratio of 34,000 to 1; Kings 
County, with a population of 2,561,000 elects 33 civil court 
judges at a ratio of 79,000 to 1; Bronx County with a popu­
lation of 1,301,000 elects 16 civil court judges at a ratio of
88.000 to 1; Queens County with a population of 1,952,000 
elects 17 judges at a ratio of 105,000 to 1; Richmond County 
with a population of 250,000, elects 4 judges at a ratio of 
42,500 to 1.

* It cannot credibly be contended that the legislature was un­
aware of these facts. Such knowledge is alleged and not disclaimed.



17

Since any judge wherever elected may and does sit in 
any part of the court such disproportion in the values of 
votes has no rational purpose. This is directly in conflict 
with the principle of one-man, one vote.

As set forth in the pleadings, the Negro and Puerto 
Rican people in 1960, represented 22.1% of the population, 
in 1966 they represented 29.3% of the population. Since 
an overwhelming percentage of the Negro and Puerto Rican 
people live in ghetto areas in the various counties, permit­
ting multi-office countywide elections their vote is diluted 
and based, in fact, almost entirely destroyed, save to the 
extent that the white majority may deign to give token 
representation in the judiciary.

The invidious discrimination whether wanted or not is 
compounded by the fact that of the 120 civil court judges, 
68 are elected from the abolished municipal court districts 
which clearly discriminate against the Negro and Puerto 
Rican electors in one fashion and at the same time county­
wide elections debase and devalue their vote by another 
device.

The Denial of the Constitutional Right to A  Primary 
and Independent Party Candidates.

In February 1968, the state legislature set up a pro­
cedure for the nomination and election of officers for the 
general election to be held on November 5, 1968. (Laws 
of 1968 Chap. 27, approved March 12, 1968)

Political leaders in the event of the absence of a primary 
designate their nominees to the Board of Elections by 
September 23, 1968. Under the state constitution a party 
primary is required save where there is no contest.

June 18, 1968 was designated at the same 1968 legis­
lative session that later passed the Additional Judges



18

Act as the primary date for that year.* Independent nom­
inations petitions had to be filed between September 3 
and September 9, 1968. Electors were unable to determine 
whether to organize either a party or group to run an 
independent candidate for judge and obtain the requisite 
signatures since the party nominees were unknown to them 
prior to that time. As no primary was permitted by law 
for such nominations, party leaders used the September 
23rd deadline.

This electoral structure deprived the voters of their 
rights under the First and Fourteenth Amendments.

The Presentation of Federal Q uestions.
The federal questions were raised in the pleadings and 

briefs in the state courts at the inception of the action and 
throughout the proceedings. The Fourteenth and Fifteenth 
amendments of the Constitution were cited. While the First 
and Thirteenth amendments were not referred to by name, 
the very nature of the pleadings and thrust of the action 
would encompass all four of the amendments. The state 
court of appeals in its amendment to the remittitur ac­
knowledged that federal questions were raised and con­
sidered, mentioning the Fourteenth and Fifteenth Amend­
ments.

The Relief Requested.
At the time of the institution of this action on August 

15, 1968, the petitioners sought a declaratory judgment 
and injunctive relief declaring certain statutes as they pro­
vide for the election of Civil Court judges unconstitutional 
and enjoining the respondents from taking such action as 
would permit them to be placed on the ballot at the General 
Election in 1968, and thereafter until the legislature pro­
vided appropriate constitutional procedures for election of 
civil court judges.

Petitioners have been denied relief. The elections were 
held. Yet the proceeding was timely brought and petitioners 
are entitled to equitable relief framed to meet the pres­
ent situation. Were petitioners granted certiorari, this

* Under state law a primary may be held in the spring or fall 
or on both occasions.



19

Court would have the power to grant the declaratory judg­
ment, and to direct that the elections held should be set 
aside. Further, this Court could direct that elections may 
not be held until the legislature enact the appropriate laws 
consonant with the constitutional requirements as enunci­
ated by this Court, and that the civil court elections be held 
as soon thereafter as circumstances permit.

The Civil Court judges purportedly elected in Novem­
ber of 1968 hold office for a term of 10 years. Whether 
wise or not, it is the custom and usage that upon the con­
clusions of any term the judges are renominated by all the 
parties. Furthermore, many of the judges of the supreme 
court of New York are selected from the civil court judges 
for terms of 14 years. Since the judges elected in 1968 
are so great in number, it would effect the makeup of the 
judiciary in the State of New York for at least a genera­
tion. The unconstitutionally elected judiciary sitting on 
the bench because of undemocratic methods, thrust upon the 
electorate by party leaders who had no choice cannot be 
permitted.

Reasons for Granting the Writ

1. The issues raised in the present petition are of great 
significance in that they relate to the constitutional pre­
requisites for the election of the judiciary. While there is 
no federal constitutional requirement that the states elect 
their judiciary, where an election is held such elections 
must comply with the federal constitution and particularly 
those of the First, Thirteenth, Fourteenth and Fifteenth 
amendments.

The issues raised in this petition and in the courts below 
must be considered in light of the fact that the minority 
groups subject to discrimination, Negro, Puerto Rican, and 
others by reason of their race, color and national origin are 
forced to live in overcrowded slum ghettos, whether urban 
or rural.



20

Intertwined in the present action is the fundamental 
prerequisite of our democracy, the right to an effective 
vote, see Yick Wo vs. Hopkins, 118 U.S. 356, and the right 
to have that full franchise utilized regardless of race, 
color, national origin, or previous history of personal 
servitude and the customs and usage associated therewith. 
In addition is the right to associate and organize to effect 
such an end.

2. Were the opinion and judgment of the lower courts 
to stand it would in substance be saying that even where 
there is no rational, let-alone compelling, purpose, invidi­
ous discrimination under the Thirteenth, Fourteenth and 
Fifteenth amendments in the electoral process may he 
permitted in the election of the judiciary. Were the opin­
ions below permitted to stand in the absence of any rational 
purpose the one-man, one vote principle would not apply in 
the election of the judiciary. Equally, the lower court’s 
opinion finds there is no constitutional right to a party pri­
mary even though the constitution of the state mandates the 
same. The decision necessarily imports there is no con­
stitutional right of the electors to organize an independent 
party or run independent nominees for judicial office.

The lower court relied in part on certain decisions of 
federal district courts. We disagree with the implications 
drawn and wall note the different factual and legal factors. 
I f  correctly interpreted by the lower courts then in that 
event there is a substantial constitutional issue which 
should be passed upon by this Court. Further, the decision 
in Bell vs. Southwell, (C.A. 5) 376 F 2d 659, is directly in 
conflict with the lower courts holding and its interpretation 
of other district court decisions. In light of these facts, the 
issues raised are of such a nature as to warrant the grant­
ing of the petition for a writ of certiorari.

3. This court has held prior to Baker v. Carr 369 U.S. 
186 and its progeny, under the Thirteenth, Fourteenth



21

and Fifteenth, amendments of the federal constitution that 
any impairment of any basic right, and specifically the right 
to vote, by reason of race, color, previous condition of per­
sonal servitude or ethnic background can not he constitu­
tionally tolerated, United States vs. Classic, 313 U.S. 299; 
Condition v. Lightfoot, 364 U.S. 339; Nixon v. Herndon, 
273 U.S. 536 ; Nixon v. Condon, 286 U.S. 63; Smith v. AU- 
wright, 321 U.S. 649; and Terrg v. Adams, 345; U.S. 461, 
both “ sophisticated as well as simple minded modes of 
discrimination” , Lane v. Wilson, 307 U.S. 268; Go million 
v. Lightfoot, supra, ex parte Yarborough, 110 U.S. 651; 
U.S. v. Mosley, 238 U.S. 373; see also the dissent of Mr. 
Justice Frankfurter in Baker v. Carr, supra.

If the legislature enacted a law that Negro and Puerto 
Rican voters could not vote for civil court judges there 
would be no question about its invalidity. Equally, if it 
were said that a Negro or Puerto Rican voter could by 
statute have only one sixth, one third or any less than a vote 
of the value of a white voter, there would not be any ques­
tion of its unconstitutionality. Yet in truth, that is the 
issue here which the lower courts disregarded. This is the 
effect.

The use of the abolished municipal court districts for 
elective purposes in conjunction with countywide elections 
of some of the civil court judges has debased or essentially 
destroyed the right to vote, whether with intent or not, of 
the Negro and Puerto Rican electors. The consequence is 
that Negro and Puerto Rican voters in the election of the 
civil court judges are not to be allowed to vote under the 
one man one vote principle.



22

4. The lower courts misread or erroneously interpreted 
the nature of the action and its objectives. In response to 
the undisputed fact that the votes of the Puerto Eican and 
Negro people had been diluted, debased or destroyed, the 
Appellate Division held:

“ The asserted inability of certain minority 
groups to nominate or elect a judge of their own per­
suasion does not afford a constitutional basis of 
relief.”

The rationale tendered was that it is not proper to create 
for electoral purposes districts on the basis of race, color 
or religion.

It is not the petitioners who ask that districts be so 
structured. The present electoral divisions are so struc­
tured. Indeed, the petitioners complain that it is discrimina­
tion that forces ghettos into being and that the people so 
evilly harassed then have their votes either taken away or 
debased by various statutes in the election of judges of the 
civil court. The petitioners ask that the required electoral 
districts be created and further that these districts be com­
pact, contiguous and equal in population.

The suggestion of the courts below that it is the peti­
tioners who wish to create districts on the basis of race, 
color or religion is not only incorrect but ignores the fact 
that the existence of the ghettos is a result of a history of 
slavery and color discrimination which impelled this nation 
to bring the Thirteenth, Fourteenth and Fifteenth Amend­
ments into existence. One cannot separate the electoral 
process contrived by state action to elect civil court judges 
from the existence of the ghetto and its causes. By state 
and private action the whites have combined to drive Ne­
groes out of certain communities while the whites left those 
areas where the Negroes and Puerto Ricans are forced to 
congregate and reside, thus preserving the “ relic of slav­
ery” , “ the badges and customs of slavery” . Jones v. Al­
fred H. Mayer d  Co., 392 U.S. 409. The technique devised



23

for the election of civil court judges represents one of those 
“ Cases which come to this Court [which] depict a spectacle 
of slavery unwilling to die” . The process of election in 
this instance represents “ contrivances by states designed 
to thwart Negro [Puerto Rican] voting.” *

5. Detailed comment on the opinions of the courts 
below is difficult to make in that they have no relationship 
to the cause of action they were confronted with and the 
undisputed facts alleged.

It would seem from reading the opinion of the Appel­
late Division as if the petitioners were complaining about 
the allocation of judges to various areas or subdivisions 
of the single civil court to various courthouses. But that 
was not the complaint. Nor do the petitioners complain 
about the fact that judges may be assigned to various coun­
ties where the court may be sitting. From reading the 
opinion of the Appellate Division and the cases cited with 
reference to the election of the judiciary two things are 
quite evident: none of the cases referred to related to the 
question of racial discrimination in the selection of judges; 
and the essential issue involved in each of those cases 
was the irrelevant question of the allocation or assignment 
of judges in a multi-district structure to overcome calen­
dar delays.** Our case, on the contrary, deals with inequal­
ity in electoral ‘ ‘ districts ’ ’, all of which are in the same ju­
dicial district, no question of allocation of judges being in­
volved. *

* In Jones this Court noted the interrelationship of the Thirteenth, 
Fourteenth and Fifteenth Amendments and that the Fourteenth 
Amendment was a reaffirmation of the Thirteenth brought into being 
to eliminate any doubts as to the constitutional validity of the Civil 
Rights Act of 1866.

** New York State Association of Trial Lawyers v. Rockefeller, 
267 F.Supp. 148; Kail v. Rockefeller, 275 F.Supp. 937; Buchanan v. 
Rhodes, 249 F.Supp. 860 appeal dismissed 385 U.S. 3 ; Stokes v. 
Fortson, 234 F.Supp. 575.



24

6. The courts below conclude that regardless of the 
element of racial discrimination in the election of civil 
court judges the principle of one man-one vote is not ap­
plicable to the judiciary, in that a judge does not make 
law, only legislators do, and that judges merely apply the 
law in a ministerial fashion because they do not represent 
or champion the cause of a particular constituency.

In fact courts and judges do make law both in the 
federal and state courts and this is part of our common 
law and its tradition. Judges are not mere administrators 
or subject to computerization. The judgmental process 
is much more complex and personalized. It so happens 
that the civil court of the City of New York is essentially 
the court of the poor of whom the Negro and Puerto Rican 
people constitute the overwhelming majority. Yet this is 
the court where judges are elected primarily by whites 
and the Negro and Puerto Rican people are particularly 
deprived of effectively participating in the election. If the 
courts below were correct, if the mere fact that judicial 
elections are involved would suffice to defeat the petitioners ’ 
case, then it would be lawful and constitutional to deny 
all Negroes and Puerto Ricans the right to vote for 
judges and to have all judges elected by whites only!

7. One cannot separate the one man-one vote principle 
from the previously established constitutional mandate that 
there be no discrimination under the Thirteenth, Four­
teenth and Fifteenth Amendments either under the Equal 
Protection Clause or the proscription of discrimination by 
reason of race, color, previous condition of servitude or 
national origin. This matter has been specifically disposed 
of in Bell v. Southwell, (C.A.5) 376 F. 2d 659 where there 
was flagrant discriminatory conduct. That case involved the 
election of a judge. A  suit was instituted after the elec­
tion. The Court of Appeals invalidated the election and 
noted that where there is discrimination it is not only 
the Negro, in that instance, “ but the body politic as a



25

whole both Negro and W hite”  who suffer. The court 
articulated the established principle, see Yick Wo v. Hop­
kins, supra, that the constitution requires that the court 
look with closest scrutiny to determine the existence of 
discrimination in the electoral process.

In New York and in many northern states the forms and 
procedures to discriminate against the Negro, Puerto Eican 
and other minorities are usually more subtle, complex and 
devious and even on occasion unintended. Yet the effect 
is the same and equally unconstitutional.

The right to organize ap independent political party 
or to nominate an independent nominee is a constitutional 
right the deprivation of which is in violation of the First 
and Fourteenth Amendments of the Constitution. Williams 
v. Rhodes, — U.S. — 89 S.Ct. 5.

In Williams v. Rhodes, supra, this court held that where 
the electoral laws made it overly burdensome to nominate 
an independent candidate, the laws were unconstitutional. 
In the present action, as in Williams v. Rhodes, the state 
has imposed “ burdens on the right to vote”  and if there is 
any invidious distinction there is a violation of the Equal 
Protection Clause.

The voters of the City of New York must be afforded the 
right to organize and associate and “ cast their votes effec­
tively” . This right has been impinged upon. As the 
comb pointed out in Williams v. Rhodes, supra, to give a 
meaningful opportunity to associate and organize means 
one must know whom the parties will nominate since that 
is a vital factor in the determination to run an independent 
candidate. The petitioners here were deprived of that 
right.

The legislature knew, as shown by its amendments to 
the Election Law in 1968 and the Additional Judges Act 
in the same session that they were creating and utilizing 
“ cumbersome election machinery”  to deny a truly effective



26

right to independently nominate and to vote for civil court 
judges in the City of New York. Mr. Justice Harlan so 
stated in his concurring opinion in referring to cumber­
some statutory schemes,

“ . . . the state has eliminated the basic incentive 
that all political parties have for conducting such 
activities, thereby depriving appellants of much of 
the substance, if not the form, of their protected 
rights. The right to have one’s voice heard and one’s 
views considered by the appropriate governmental 
authority is at the core of political association.”

9. The fact that the elections have already been held 
should not deter this Court’s exercise of its equitable 
powers to declare the statutes unconstitutional, and set 
aside the election.

The petitioners support the Additional Judges Act to 
the extent it increases the number of judges to expedite 
the work of the courts. Yet, if a judge is unconstitutionally 
elected he must not be permitted to remain if all of the 
electorate and particularly the Negro and Puerto Rican 
people were deprived of any effective choice in the selection 
of the judiciary by unconstitutional means.* An equitable 
remedy must be found now which will not permit those 
elected to sit for 10 years, or more likely, for 20 to 25 years, 
in view of the custom and usage of judicial renomination 
and designation to higher courts.

This action was brought in August of 1968, three months 
prior to the election. On October 4, 1968 the state appel­
late process was completed. The situation is analogous to 
that found in Bell v. Southwell, supra, and Hamer v. Camp­
bell, (C.A. 5) 358 F.2d 215, cert. den. 385 U.S. 851. In 
Hamer v. Campbell the action was instituted prior to the 
election. The election was held and thereafter the Court

* Although not in the record everyone knows that the party 
leaders, even overriding a judicial screening panel, made their deal 
and the voters had no choice.



27

of Appeals set aside the election and directed that a spe­
cial election be held, affording adequate time, in the spring 
of the subsequent year. In Bell v. Southwell the action 
was not instituted until after the election. Yet the Court 
of Appeals nevertheless found that the election was uncon­
stitutional and it directed that a new election be held under 
terms and conditions that would remove the unconstitutional 
methods long previously followed.

The statutes challenged should be declared unconstitu­
tional. The election of all civil court judges improperly 
elected should be declared null and void and the respond­
ents shoidd be enjoined from holding an election until the 
legislature removes the constitutional defects and directs 
the holding of an election of civil court judges in conform­
ance with the Constitution and the guidelines that this 
Court may set forth.

Conclusion

New York State has enacted numerous civil rights sta­
tutes. Its constitution includes many aspects of the amend­
ments of the Federal Constitution upon which petitioners 
seek relief. Civil rights statutes brought into being by the 
federal government are applicable to the state. But as 
stated by this. Court and by the senators wTho enacted the 
original civil rights act of 1866, statutes, amendments to 
the constitution, declarations of truth and principle are 
essentially rhetorical unless there are means and methods 
to resort to the courts to enforce these principles, encom­
passed in the constitution, statutes and statements of pol­
icy.

We know the judiciary in the states can and should be 
a protagonist for the enforcement of basic democratic rights 
of all of the citizens of each of the states. Petitioners can­
not conceive how a judicial structure tainted from its ineep-



28

tion by discrimination against the Negroes and Puerto 
Ricans in the election process can meet its obligations and 
duties.

The petition for writ of certiorari should he 
granted. The orders and judgments of the courts 
below should be reversed and the relief requested 
granted.

Respectfully submitted,

M ilton  M . F riedman  
M arsh all  P erlin  

Attorneys for Petitioners



A P P E N D IX  i

(Order of Special Term)

SUPREME COURT OF THE STATE OF NEW YORK 

S pecial  T er m , P art I 

C o u n ty  op N ew  Y ork

Present:
H o n . J ohn  L. F l y n n , Justice.

Index Number 12996, 1968

------------------------------------o — -------------— —

M argaret C ox, et al, etc.

against

H erm an  K atz, et al, etc.
-------------------------------------------------- o - — — — •— - — •—

The following papers numbered 1 to 6 read on this 
motion argued.

No. 82 on Calendar of August 29, 1968.
Papers

Numbered

Filed Papers— Order to Show Cause— and Affi­
davit Annexed summons com plaint.................. 1-4

2 Cross Motion .......................................................  5-6

Cox v. Katz—Motion is denied. It is impossible to 
ascertain anything herein which renders the act of the 
Legislature creating in 1968 a number of Civil Court judges 
unconstitutional. Cross-motion of Board of Elections and 
the city clerk is accordingly granted.

Dated: August 29, 1968
J L F

J.8.C.



2a

(Opinion of Appellate Division)

SUPREME COURT, APPELLATE DIVISION 

F irst D epartm e n t , S eptem ber  1968

Index No. 13618

A ron  S teuer , J.P.
G eorge T xlzer

Ow e n  M cG ivern

J am es  B. M. M cN a lly , JJ.

A P P E N D IX  ii

-----------------------o-----------------------

M argaret C ox, H oward R . M oody, A lex  J. R osenberg, 
H umberto A ponte , P au l  K errigan , A ndrew  C ooper, 
S tan ley  H arry H a m ilto n , P eter W eiss and B eatrice 
J ones, individually and on behalf of all other citizen- 
electors of the City of New York,

Plaintiff s-Appellants,
against

H erm an  K atz , City Clerk of the City of New York, and 
J ames M. P ower, T homas M allee , M aurice J . O ’R ourke 
and J . J . D uberstein , Commissioners of Election, consti­
tuting the Board of Elections in the City of New York,

Defendants-Respondents,

A ttorn ey  G eneral  op the S tate op N e w  Y ork,
Inlervenor-Respondent.

-----------------------o-----------------------

Appeal from an order of the Supreme Court at Special 
Term (F l y n n , J.), entered on August 29, 1968, in New 
York County, which denied appellants’ application for a 
temporary injunction and dismissed the complaint.



3a

M ilton  H, F riedm an  and. M arshall P erlin , Attorneys 
for plaintiffs-appellants.

R obert E. H ugh of counsel (J. L ee R a n k in , Corpora­
tion Counsel) for defendants-respondents.

P h ilip  W einberg  o f  counsel (S am u e l  A. H irshow itz 
and George D . Z ugkerm an  with, him on  the b r ie f)  
fo r  in terven or-respon den t.

M cN a lly , J .:

Plaintiffs, electors of the City of New York, challenge 
as unconstitutional various statutes implementing the 
establishment of the city-wide court of civil jurisdiction. 
Defendants are the City Clerk and the Commissioner of 
Elections, constituting the Board of Elections in the City 
of New York.

The statutory provisions for the election of the judges 
are allegedly violative of the New York State Constitution 
because of non-compliance with the provision for their 
election “ by the electors of the counties included within 
the city of New York from districts within such counties 
established by law.”  (Art. 6, sec. 15, subd. a.) Plaintiffs 
also contend that the statutory provision for the election 
at the general election to be held in November 1968 of 
25 additional judges (L. 1961, c. 987, sec. 17) is invalid 
and contrary to Art. 1, sec. 1, and Art. 2, sec. 1 of the New 
York State Constitution securing franchise, and violative 
of the equal protection clause of the Fourteenth Amend­
ment and the Fifteenth Amendment of the United States 
Constitution.

The New York State Constitution was amended Novem­
ber 7, 1961, effective September 1, 1962, to enable the 
Legislature to establish a single court of city-wide civil 
jurisdiction. Art. 6, sec. 15 provides, in part: “ The
judges of the court of city-wide civil jurisdiction shall be

Appendix ii



Appendix ii

residents of such city and shall be chosen for terms of ten 
years by the electors of the counties included within the 
city of New York from districts within such counties 
established by law. ’ ’

Art. 6, sec. 35, subd. e of the Constitution makes pro­
vision for the abolition of the city court and the munici­
pal court of the city of New York and the transfer of the 
justices thereof to the city-wide court.

In accordance with the constitutional mandate, the 
Legislature established the Civil Court of the City of 
New York (L. 1962, c. 693), abolished the municipal and 
city courts of the city of New York and constituted the 
justices thereof judges of the Civil Court (id., sec. 2201; 
L. 1962, c. 694). Subsequent annual amendments of ch. 
694 provide that a vacancy in the office of judge of the 
Civil Court formerly a justice of the Municipal or City 
Court is to be filled by the electors of the county, in the 
case of a former justice of the City Court, or his successor, 
and in the case of a former justice of the Municipal 
Court, or his successor, by the electors of the former 
Municipal Court district. The 25 additional judges pro­
vided for by L. 1968, c. 987, are allocated among the five 
counties of the City of New York.

Plaintiff's allege the several political parties propose 
to make nominations for the 25 additional judicial offices 
and the City Clerk is about to certify that 25 additional 
judges are to be elected at the general election in 1968 in 
contravention of the rights of the electors of the City of 
New York to nominate candidates for such offices.

The aforesaid statutory allocation of judges is presump­
tively constitutional. (Wasmuth v. Allen, 14 N.Y. 2d. 391, 
397; I.L.F.Y.Co. v. City Rent Administration, 11 N.Y. 2d. 
480, 490.) The establishment of the city-wide court of 
civil jurisdiction served to merge the former City Court 
and Municipal Court of the City of New York. The



5a

justices of the merged Municipal Court had been elected 
from Municipal Court districts within each county, and the 
justices of the merged Civil Court had been elected from 
each of the counties within the City. It was necessary 
to enable the Legislature to establish judicial districts for 
the city-wide court in the light thereof. Patently it was 
not intended to compel the Legislature to discard the 
county basis formerly utilized for the election of justices of 
the City Court. (It is also evident that the constitutional 
provisions for the city-wide Civil Court do not purport to 
resolve the feasibility of extending to it the former Mu­
nicipal Court districts as the basis for the election of judges 
of the city-wide court.)

We construe the provisions of Art. 6, sec. 15, subd. a, 
for the election of judges of the city-wide Civil Court to 
enable the Legislature to provide for their election by the 
electors of each of the counties within the city, and to re­
solve whether or not to allocate judges to districts within 
such county in the light of the fact that justices of the Mu­
nicipal Court had been elected from districts within each 
county.

The Legislature has seen lit to provide for county-wide 
election of former City Court justices and their successors 
as well as the 25 additional judges, and for the election of 
former Municipal Court justices and their successors from 
the former Municipal Court districts. We may not sit in 
review of the discretion exercised by the Legislature or its 
wisdom. (People v. Friedman, 302 N.Y. 75, 79.)

The said legislative provisions for the allocation and 
election of judges of the city wide Civil Court do not in­
fringe the right of franchise or the equal protection provi­
sions of the United States and New York State Constitu­
tions. There are many relevant factors in the allocation of 
judges, including population, volume and nature of litiga­
tion, location of governmental agencies and officials and 
transportation facilities. In contrast, the election of legis­

Appendix ii



6a

lators involves the constitutionally protected right of each 
individual to an equal, undiluted vote regardless of race, 
color, creed or religion. There is no constitutional require­
ment for allocation of judges on the sole basis of popula­
tion. (N.Y. State Ass’n of Trial Lawyers v. Rockefeller, 
267 F. Supp. 148; Kail v. Rockefeller, 275 F. Supp. 937.)

The asserted inability of certain minority groups to 
nominate or elect a judge of their own persuasion does not 
afford a constitutional basis for relief. Even as to legisla­
tors it has been said:

“ The principle of equality at war with the no­
tion that District A  must be represented by a Negro, 
as it is with the notion that District B must be repre­
sented by a Caucasian, District C by a Jew, District 
D by a Catholic, and so on ***. That system, by 
whatever name it is called, is a divisive force in a 
community, emphasizing differences between candi­
dates and voters that are irrelevant in the constitu­
tional sense.”  Wright v. Rockefeller, 376 U.S. 52, 
66, Douglas, J., dissenting; Mann v. Davis, 245 
F.Supp. 241, 245, aff’d 382 U.S. 42.

In the light of the existing circumstances, it is within the 
competence of the political parties of the City of New York 
to nominate candidates for the position of 25 additional 
judges. Sec. 1, Art. I of the New York State Constitution 
provides, “ No member of this state shall be disfranchised 
***.”  This franchise includes the right to participate in 
the nomination of candidates. The Legislature, however, 
may regulate the right within reasonable limitations. (Mat­
ter of Davis v. Board of Elections, 5 NY 2d 66, 69.

Involved are extraordinary circumstances. The Act pro­
viding for the additional 25 Civil Court judges (ch. 987, L. 
1968) provides (sec. 17) it shall take effect June 1, 1968, 
but that the judges shall first be elected at the general elec­
tion in November, 1968, and shall take office January 1, 
1969. The Act was signed and became effective June 22, 
1968, after the spring primary had been held.

Appendix ii



7a

Public Officers Law, sec. 30, subd. 2, provides:
“ When a new or an additional office shall be cre­

ated, such office shall for the purpose of an appoint­
ment or election, be vacant from the date of its crea­
tion, until it shall be filled by election or appoint­
ment. ’ ’

Sec. 131, subd. 7 of the Election Law enables a party 
nomination to fill a vacancy occurring after the primary by 
a majority of the county committee if the offiee is not state­
wide. (Matter of Adler, Sup. Ct. West. Co., Dempsey, J., 
L.J. 8/12/68, col. 9.)

Appellants argue that ch. 987 is so framed as to pre­
clude interim appointments by the Mayor of the City of 
New York to fill the newly created judicial offices. Hence, 
they argue, since there is no vacancy in the light of the 
Mayor’s power to appoint, there is none with respect to 
the power to nominate of the county committee. The answer 
is that the statute creating the new judgeships mandates 
their election in November 1968 and precludes their taking 
office prior to January 1, 1969, thus precluding any interim 
appointment.

For the reasons above stated, the order denying appel­
lants’ application for a temporary injunction and dismissing 
the complaint should be affirmed, with costs.

ALL CONCUR.

Appendix ii



8 a

(Memoranda Opinion of Court o f Appeals)

M argaret Cox et al., Individually and on Behalf of All Other 
Citizen-Electors of the City of New York, Appellants, v. 
H erm an  K atz , as City Clerk of the City of New York, et 
al., Respondents, and Louis J. L e fk o w itz , as Attorney 
General of the State of New York, Intervenor-Respon- 
dent.
Cox v. Katz, 30 A  D 2d 432, affirmed.
A ppeal , on constitutional grounds, from an order of the 

Appellate Division of the Supreme Court in the First Judi­
cial Department, entered September 19, 1968, which unani­
mously affirmed an order of the Supreme Court at Special 
Term ( J oh n  L. F l y n n , J.), entered in New York County, 
denying an application by plaintiffs for a temporary injunc­
tion and dismissing their complaint in an action for, among 
other things, a judgment declaring unconstitutional various 
statutes implementing the establishment of the single court 
of city-wide civil jurisdiction provided for by article VI of 
the New York State Constitution, as amended effective Sep­
tember 1, 1962. In said constitutional amendment, provi­
sion was made for the abolition of the City Court and the 
Municipal Court, for the transfer of the Justices thereof to 
the city-wide court and for the choosing of the Judges of 
the city-wide court “ by the electors of the counties included 
within the city of New York from districts within such 
counties established by law”  (art. VI, § 15, subd. a). The 
Legislature thereafter established the Civil Court of the 
City of New York, abolished the City Court and Municipal 
Court, whose Justices had been elected, in the case of the 
Municipal Court, from Municipal Court districts within 
each county in the city and, in the case of the City Court, 
from each of the counties within the city, constituted the 
Justices of the City and Municipal Courts Judges of the

A P P E N D IX  iii



9a

Civil Court, and provided that a vacancy in the office of 
Judge of the Civil Court was to be filled, in the case of a 
former Justice of the Municipal Court or his successor, by 
the electors of the former Municipal Court district and, in 
the case of a former Justice of the City Court or his succes­
sor, by the electors of the county (L. 1962, ch. 693; L. 1962, 
ch. 694, as last amd. by L. 1968, ch. 152). In 1968, in a bill 
which was signed into law on June 22, 1968, after the date 
of the spring primary election, the Legislature created 25 
additional judgeships for the Civil Court, allocated them 
among the five counties, and provided that these new Judges 
were to be elected, on a county-wide basis, at the November,
1968 general election and were to take office January 1,
1969 (L. 1968, ch. 987, §§ 14, 17). Plaintiffs alleged that 
article VI (§ 15, subd. a) of the New York State Constitu­
tion required the Legislature to establish Civil Court dis­
tricts for the selection of the Judges of the Civil Court; that 
the statutory provisions for county-wide elections to said 
judicial offices violated the principle of “ one man-one vote”  
and effected a disenfranchisement of electors on the basis 
of racial and ethnic origins, and that nominations for the 
additional judgeships could not constitutionally be made by 
party committees or in any manner other than by the elec­
tors at a primary election. The Appellate Division con­
cluded that section 15 (subd. a) of article VI of the New 
York State Constitution enabled the Legislature to make 
provision, in its discretion, for the election and allocation 
of the Judges of the Civil Court; that the statutes enacted 
to implement said constitutional provision did not infringe 
the right of franchise or violate the equal protection clause 
of the United States Constitution, and that, in the light of 
the circumstances, the nominations for the additional judge- 
ships might properly be made by the political parties rather 
than by the electors of the city.

Appendix in



Milton H. Friedman and Marshall Berlin for appellants.
J. Lee Rankin, Corporation Counsel (Robert E. Hugh of 

counsel), for respondents.
Louis J. Lefkoivitz, Attorney-General (Philip Weinberg, 

Samuel A. Hirshowitz and George D. Zuckerman of coun­
sel), intervenor-respondent.

Per Curiam. We agree with the decision of the Appel­
late Division and concur with the views expressed in its 
opinion. We would simply add a few lines to point up the 
federal questions urged upon us by the plaintiffs.

There is no basis for the application of the “ one man- 
one vote”  principle to the present case. That doctrine, 
designed to assure representative government in a democ­
racy such as ours, was never intended to regulate the elec­
tion of judges whose functions are solely judicial. There 
is neither reason nor justification for a requirement that 
judges be distributed or allocated throughout a state or 
city on a per capita basis. Legislatures are responsible 
for enacting laws by which all citizens are to he governed, 
and, accordingly, “ they should be bodies which are col­
lectively responsive to the popular will.”  (See, e.g., Rey­
nolds v. Sims, 377 U. S. 533, 565.) However, the judiciary, 
differing radically from the Legislature, is not responsible 
for achieving representative government. As one court has 
put it, “ population is not necessarily the sole, or even 
the most relevant, criterion for determining the distribu­
tion of state judges. The volume and nature of litigation 
arising in the various areas of the state bears no direct 
relationship to the population of those areas.”  {New York 
State Assn, of Trial Lawyers v. Rockefeller, 267 F. Supp. 
148, 153-154; see, also, Kail v. Rockefeller, 275 F. Supp. 
937; Buchanan v. Rhodes, 249 F. Supp. 860, app. dsmd. 385 
U. S. 3; Stokes v. Forison, 234 F. Supp. 575, 577.)

The function of judges, it is manifest, is to apply the law, 
not to represent or champion the cause of a particular con­

10a

Appendix in



11a

stituency. More specifically, the judges of the New York 
City Civil Court (with which we are concerned) do not act 
collectively. They are not to be elected to represent a par­
ticular point of view. The Civil Court does not receive 
cases on the basis of the racial or ethnic origins of the 
parties or their places of residence within the city. Quite 
obviously, the Legislature is called upon to exercise a far 
different kind of discretion in determining how judges are 
to be allocated to geographical areas, and how they are to 
be chosen, than it exercises— or would be free to exercise— 
in establishing electoral districts or in prescribing methods 
of nomination for the election of legislators or of those 
vested with legislative functions.

The order appealed from should be affirmed, without 
costs.

Chief Judge F ttld and Judges B u rk e , S cilefpi, B ergan, 
K eating , B reitel  and J ason concur.

Order affirmed.

Appendix Hi



12a

APPENDIX iv 

(Order o f Court o f Appeals)

COURT OF APPEALS 

S tate of N ew  Y ork , ss :

PLEAS in the Court of Appeals, held at Court 
of Appeals Hall, in the City of Albany, on the 
4th day of October in the year of our Lord 
one thousand nine hundred and sixty-eight, 
before the Judges of said Court.

Witness.
The Hon. S tan ley  H. F uld ,

Chief Judge, Presiding.

R aym ond  J. Ca n n o n ,
Clerk.

-----------------------o-----------------------

1. No. 465, 68

M argaret Cox, & ors., &c.,
Appellants,

vs.

H erm an  K a tz , City Clerk of the City of New 
York, & ors., &c.,

Respondents.

Louis J. L e fk o w itz , Attorney General of the 
State of New York,

Intervenor-Respondent.

-----------------------o------- -— —---- —

Be It R em embered , That on the 21st day of September 
in the year of our Lord one thousand nine hundred and 
sixty-eight, Margaret Cox, & ors., &c,, the appellants in this



13a

Appendix iv

cause, came here unto the Court of Appeals, by Freedman & 
Perlin, their attorneys, and filed in the said Court a Notice 
of Appeal and return thereto from the order of the Appel­
late Division of the Supreme Court in and for the First 
Judicial Department. And Herman Katz, City Clerk of 
the City of New York, & ors,, &c., the respondents, and 
Louis J. Lefkowitz, Attorney General of the State of New 
York, the intervenor-respondent in said cause, afterwards 
appeared in said Court of Appeals by J. Lee Rankin, and 
Louis J. Lefkowitz, Attorney General, pro se, attorneys. 
Which said Notice of Appeal and the return thereto, filed 
as aforsaid, are hereunto annesed.

W hereupon, The said Court of Appeals having heard 
this cause argued by Messrs. Milton H. Friedman and 
Marshall Perlin, of counsel for the appellants, and by Mr. 
Robert E. Hugh, of counsel for the respondents, and by 
Mr. Philip Weinberg, of counsel for the intervenor-respon­
dent-, and after due deliberation had thereon, did order 
and adjudge that the order of the Appellate Division of the 
Supreme Court appealed from herein be and the same 
hereby is affirmed, without costs.

And it was also further ordered, that the records afore­
said, and the proceedings in this Court, be remitted to the 
Supreme Court of the State of New York, there to be 
proceeded upon according to law.

Therefore, it is considered that the said order be af­
firmed, without costs, as aforesaid.

And hereupon, as well the Notice of Appeal and return 
thereto aforesaid as the judgment of the Court of Appeals 
aforesaid, by it given in the premises, are by the said 
Court of Appeals remitted into the Supreme Court of the 
State of New York before the Justices thereof, accord­
ing to the form of the statute in such case made and pro-



Appendix iv

vicled, to be enforced according to law, and which record 
now remains in the said Supreme Court, before the Justices 
thereof, &c.

Raymond J. Cannon 
Clerk of the the Court of Appeals of the 

State of New York

Court of A ppeals, Clerk’s Office 
Albany, October 4, 1968

I Hereby Certify, that the preceding record contains 
a correct transcript of the proceedings in said cause in the 
Court of Appeals, with the papers originally filed therein, 
attached thereto.

Raymond J. Cannon
Clerk



15a

APPENDIX v 

(Order of Court of Appeals)

STATE OF NEW YORK

I n C ourt op A ppeals

At a Court of Appeals for the State of New 
York, held at Court of Appeals Hall in the 
City of Albany on the seventeenth day of 
October, A. D. 1968.

Present:
H on . S tanley  H . F uld ,

Chief Judge, presiding.

1

-----------------------0-------------------

Mo. No. 1100

M argaret Cox, & ors., &e.,

vs.
Appellants,

H erm an  K atz, City Clerk of the City of New York, 
& ors., &c.,

Respondents,

Louis J. L e f k o w it z , Attorney General 
of the State of New York.

Intervenor-Respondent.
--------------------- o----------------------

A motion to amend the remittitur in the above cause 
having heretofore been made upon the part of the appel­
lants herein and papers having been submitted thereon and 
due deliberation having been thereupon had, it is



16a

Ordered, that the said motion be and the same hereby 
is granted. The return of the remittitur is requested and, 
when returned, it will be amended by adding thereto the 
following:

Upon the appeal herein there were presented and 
necessarily passed upon questions under the Consti­
tution of the United States, viz.: Appellants con­
tended that they were denied equal protection under 
the law contrary to the one man-one vote principle, 
contrary to the Fourteenth Amendment of the Con­
stitution of the United States and, further, that the 
Negro and Puerto Rican voters were, by said action, 
discriminated against by reason of their race, color 
and national origin and thus their right to effective 
franchise was diluted or destroyed contrary to the 
Fourteenth and Fifteenth Amendments of the Con­
stitution. The Court of Appeals, considered these 
contentions and held that there was no violation of 
appellants’ constitutional rights.

A nd the Supreme Court of New York County hereby is 
requested to direct its Clerk to return said remittitur to this 
Court for amendment accordingly.

A copy

Appendix v

G eorge K im ball ,
Deputy Clerk.

EXHIBIT A

(PHOTOSTAT) 

(See Opposite fH T“)



Old M u n ic ip a l 
D i s t r i c t

T o ta l
P o p u la t io n

Number o f  
Judqes

R a t io  P o p u la t io n  
To Judqe W hite {%) Necjro (%) P u e rto  R i c a n  

5 ,5 6 4

(%)

7 . 0
1 7 9 ,7 4 3 3 2 6 , 5 8 1 6 9 , 6 6 7 8 7 , 4 4 , 5 1 2 5 . 7

2 2 0 5 ,3 1 8 5 4 1 , 0 6 4 1 4 4 ,5 5 5 7 0 . 4 1 4 ,5 2 6 7 . 1 4 6 , 2 3 7 2 2 . 6

3 1 0 2 ,3 6 9 4 2 5 ,5 9 2 8 0 , 3 8 7 7 8 . 5 5 ,4 3 0 5 . 3 1 6 ,5 5 2 1 6 . 2

4 1 1 1 ,7 4 9 3 3 7 , 2 4 9 1 0 5 ,2 8 0 9 4 .2 1 ,4 3 0 1 . 2 8 5 ,0 3 9 4 . 5

5 2 4 6 ,6 3 1 3 8 2 , 2 1 3 1 8 1 ,5 6 0 7 3 . 6 2 7 , 2 0 7 1 1 . 0 3 7 , 8 6 4 1 5 . 4
6 1 9 7 ,9 0 5 3 6 5 , 9 6 8 1 4 6 ,1 8 3 7 3 . 9 1 3 , 9 3 7 7 . 0 3 7 , 7 8 5 1 9 . 1

7 3 5 0 ,4 3 3 3 1 1 6 ,8 1 1 2 1 5 ,4 3 9 6 1 . 5 1 0 3 ,8 2 4 2 9 . 6 3 1 , 1 7 0 8 . 9
8 1 0 7 ,1 9 1 2 5 3 ,5 9 5 2 3 ,5 5 4 2 2 . 0 4 8 , 5 0 4 4 5 . 3 3 5 ,1 3 3 3 2 . 8
9 1 0 0 ,1 7 0 6 1 6 ,6 9 5 9 4 ,7 2 4 9 4 . 6 1 ,8 5 1 1 . 8 3 , 5 9 5 3 . 6
10 1 7 9 ,8 8 7 2 8 9 ,9 4 3 1 0 , 1 6 1 5 . 7 1 6 5 ,3 4 1 9 1 . 9 4 , 3 8 5 2 . 4

e x h i b i t  a



17a



18a

EXHIBIT B

(PHOTOSTAT) 

(See Opposite p g r )



19a



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