Home » Legislature & Courts » Briefs and Complaints » Voting Briefs and Complaints
United States District Court Southern District of Florida
Case No.
BASIL DIAMOND, PETER LAMELAS,
ELAINE DARWIN, KELLY GOTTLIEB,
Plaintiffs,
v.
TOWN OF MANALAPAN, a Florida municipal corporation,
JANICE M. MOORE, in her official capacity as the Clerk of the
Town of Manalapan, and THERESA LAPORE, in her official capacity
as the Supervisor of Elections for Palm Beach County,
Defendants
Complaint
Nature of the Case
1. By this action, plaintiffs challenge the Town of Manalapan's refusal to reapportion its town commission districts. Four commission members currently represent 89 residents on the ocean side of the Town, commonly referred to as the "Ocean," and two commission members represent 232 residents on the island side, commonly referred to as the "Point." This obvious deviation from the "one person, one vote" principle is further exacerbated by a vacancy of one of the two commission seats representing the 232 residents, which the four commission members currently representing the 89 residents refuse to fill. Accordingly, all 232 Point residents currently have only one vote on the entire Town Commission, notwithstanding the fact they outnumber Ocean residents by more than two-to-one. Thus, the four Town Commissioners, who represent only 89 residents, control the Town Commission. These four commissioners, who represent a small minority of the Town residents, are now attempting to disenfranchise the majority residents by shrinking the borders of the Town or deannexing the Point in order to seize the majority of municipal assets.
2. Plaintiffs bring this action to prevent deprivation under color of state law, statute, ordinance, regulation, custom or usage, of rights, privileges, and immunities secured to plaintiffs by the Constitution and laws of the United States, by the failure of the Town Commission to enact a reapportionment plan after the 2000 Census for the Town Commission which conforms to the standards of the Fourteenth Amendment of the United States Constitution. Plaintiffs further seek to enjoin any future elections for the Town Commission until a constitutionally acceptable districting plan is in place. The existing districting plan for the election of members of the Town Commission is an unconstitutionally malapportioned plan which violates the one person, one vote principle. Plaintiffs also seek to preliminarily and permanently enjoin the Town Commission from pursuing contraction or deannexation under Chapter 171 of the Florida Statutes as the utilization of this statute is an effort to evade due process and equal protection of the laws in violation of the Fourteenth Amendment of the United States Constitution and this statute as applied to plaintiffs would be unconstitutional in that it deprives plaintiffs of due process and equal protection of the laws in violation of the Fourteenth Amendment of the United States Constitution. The rights, privileges, and immunities involved herein include the right to equal and unabridged participation in the electorate and the right to equal protection of the laws secured by the Fourteenth Amendment to the United States Constitution.
Jurisdiction
3. This Court has jurisdiction over this case under 28 U.S.C. ??1331, ?1343(a)(3).
4. Declaratory relief is authorized by the Declaratory Judgment Act, 28 U.S.C. ??2201, 2202. This case arises under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. ?1983, creating a federal cause of action for violations of plaintiffs' civil rights.
Parties
5. Plaintiff, Basil Diamond, is a resident and registered voter of the Town of Manalapan on the section of Hypoluxo Island commonly called "Point," and resides in Town Commission District 3.
6. Plaintiff, Peter Lamelas, is a resident and registered voter of the Town of Manalapan on the section of Audubon Key commonly called "Point," and resides in Town Commission District 3.
7. Plaintiff, Kelly Gottlieb, is a resident and registered voter of the Town of Manalapan on the section of Audubon Key commonly called "Point," and resides in Town Commission District 3.
8. Plaintiff, Elaine Darwin, is a resident and registered voter of the Town of Manalapan on the section of Hypoluxo Island commonly called "Point," and resides in Town Commission District 3.
9. Defendant, Janice M. Moore, is the Clerk of the Town of Manalapan, Florida, and serves as the local supervisor of elections for the Town of Manalapan. She is sued in her official capacity.
10. Defendant, Theresa LaPore, is the Supervisor of Elections for Palm Beach County, Florida, and supervises elections in Palm Beach County, including those in the Town of Manalapan. She is sued in her official capacity.
11. Defendant, Town of Manalapan, Florida, is a municipal corporation incorporated under the laws of the State of Florida.
Facts
12. The Town of Manalapan was founded in 1931.
13. The Town then and now consists of two parcels of land. One portion is a strip of ocean front property on the barrier island between the Town of Ocean Ridge on the south and the Town of Lantana on the north; this portion is commonly referred to as the "Ocean."
14. The other portion of the Town consists of the southern tip of Hypoluxo Island connected to a small island known as Audubon Key. Hypoluxo Island and Audubon Key are both immediately west of the "Ocean" and are collectively referred to as the "Point."
15. At the time of incorporation, the Point consisted of only one household. By the early 1960s, the Point was being developed and subdivided into lots. By 1980, the Town population had reached, according to the U.S. Census, 329 permanent residents and has fluctuated between 312 and 330 since then.
16. The 2000 U.S. Census placed the population at 321 residents for the Town of Manalapan, 89 residents on the Ocean and 232 on the Point.
17. Despite the small size of the Town, it has created and maintained a full range of municipal services as well as significant social facilities. The Town of Manalapan has built its own Town Hall complex on the Oceans which includes the Town Commission room, administrative offices (Town Manager, Town Clerk, Town Building Official, etc.), fire and police departments. The Town has built its own Library on the Point which is used for library and social purposes. The Town has built its own water plaint with a pumping station and tank. The Town provides for complementary membership to Town residents in a private social club located on the Ocean known as the La Coquille Club at the Ritz Carlton Hotel.
18. Prior to 1974, the Town had only one election district. All Town Commissioners were elected at large. With the continued development of the Point, it became clear that the Point population would soon exceed the Ocean population.
19. The Town Charter was amended in 1974 and created three voting districts ? two of the districts were on the Ocean and one on the Point. The Charter of the Town of Manalapan is attached hereto as Exhibit "A." Two commissioners represent each district so that the Town has a total of six commissioners. Section 3.02, Charter.
20. The Town Commission consists of six members, all of whom are nominated in, and elected from, each of the three districts. Residence within the district is required in order to run for office in that district. Nominations and elections are determined by a majority of the votes cast within each district.
21. The Commission, from its membership, selects a mayor who has the right to cast an additional vote in order to break a tie vote of the Town Commission. The Commissioner selected to be Mayor in effect has two votes, or a supervote.
22. Despite the obvious disparity in population statistics for these districts (two Ocean districts for 89 residents versus one Point district for 232 residents), the districting scheme enacted in 1974 still exists today. As a result, the four Town Commissioners who represent the 89 Ocean residents control the Town Commission.
23. Were the Town of Manalapan apportioned on the basis of ideal population equality, each of the election districts for the Town Commission would contain approximately 107 persons based upon the 2000 U.S. Census. The existing districting plan has the following demographics:
District |
Total Population |
Population Variance |
Deviation % |
Ocean 1 |
26 |
- 81 |
- 75.5 |
Ocean 2 |
63 |
- 44 |
- 41.1 |
Point |
232 |
125 |
116.8 |
The total deviation of the districting plan is 206 (192.5%).
24. The Town of Manalapan's districting plan is plainly unconstitutional and violates the right of Town residents to an election scheme which enacts the principle of one person, one vote.
25. The Town Commission has the power under state law ? Fla. Const. Art. VIII, ?2(b), Art. X, ?8, and the Municipal Home Rule Powers Act, Fla. Stat. Chapter 166 (2001) ? to reapportion its districts after each decennial census by adoption of an ordinance.
26. Since 1980, the population on the Point has exceeded that of the Ocean by at least a two to one margin.
27. Since 1990, Point residents have sought to have the Town Commission redistrict in a manner which would uphold the principle of one person, one vote, but to no avail.
28. The Town Commission has been on notice as early as May, 2001, that its districting plan was mal-apportioned. A plan of redistricting was developed by the Town attorney and was proposed as Ordinance 197. That ordinance was voted down by the Town Commission on second reading.
29. As a result, the four Town Commissioners who represent the 89 Ocean residents control the Town Commission.
30. Each of the four Ocean Town Commissioners currently represents 22.25 residents.
31. The Point residents, who only have two Town Commissioners, are not equally represented.
32. Each of the two Point Town Commissioners represents 116 residents, assuming both representative seats are filled.
33. Unfortunately, in April of 2001, one of the Town Commissioners from the Point District, Peter Lamelas (also a plaintiff in this action), resigned from his position because of his appointment to a state office, and now there is only one commissioner from the Point. As a result, there is no commissioner from the Point remaining on the Town Commission that can second any motions or proposals from the remaining commissioner from the Point.
34. The Ocean-controlled Town Commission refused to fill the vacancy for the seat from the Point despite the Charter's directive that an appointment must be made to fill vacancies.
35. Accordingly, since April of 2001, all 232 Point residents have only had one vote on the entire Town Commission regardless of the fact that Point residents outnumber Ocean residents by over two-to-one. On critical issues, voting is polarized between commissioners from the Ocean versus the Point, which in turn exacerbates the lack of representation described above.
36. The Town Commission has failed to act to reapportion its election districts.
37. The Town, through its Town Commission, which is currently comprised of four Ocean residents and one Point resident, is attempting to hold elections and vote on proposed ordinances that would deannex, or contract, the Ocean from the Town.
38. Knowing that such a proposed ordinance would probably not pass if the Point residents were adequately represented, the Ocean residents and their controlled Town administration have thwarted the Point residents' efforts to obtain equal representation by refusing to certify a petition from Point residents to reapportion and by the Town Commission undertaking the process of deannexation under Chapter 171 of the Florida Statutes before the Point residents are able to obtain adequate representation at the Town Commission.
39. On January 22, 2002, a town meeting was held where the Town Commission discussed its plans to introduce an ordinance allowing for deannexation and contraction of the Ocean from the Town, taking all the Town physical assets (Town Hall Complex [administration, fire, police with all equipment]), Town Water Plant and Town Library without any compensation being given to the Point residents as is shown by proposed Ocean ordinance for contraction / deannexation attached and incorporated herein as Exhibit B.
40. A March 5, 2002, Town Commission election is scheduled.
41. Unless restrained by this Court, the March 5, 2002, election will be conducted using the malapportioned districting plan and the Town Commission will continue the process of deannexation and thereby plaintiffs will irreparably be harmed.
42. Unless restrained by this Court, plaintiffs are and will continue to be irreparably harmed.
43. Plaintiffs have no adequate remedy at law.
44. The actions of defendants complained of are under color of state law and, as to the Town and Defendant Moore, are pursuant to municipal custom and policy.
First Cause of Action
45. The actions of the defendants in maintaining the existing malapportioned districting plan for the Town of Manalapan and in conducting an election under such plan deprives plaintiffs of due process and equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution, in that said districting plan violates the one person one vote requirement.
Second Cause of Action
46. The actions of the defendants in seeking to contract the Town or to deannex the Ocean (effectively deannexing the Point) will deprive plaintiffs of due process and equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution, in that any contraction or deannexation will proceed only under a districting plan that violates the one person one vote requirement.
WHEREFORE, plaintiffs respectfully request this Court:
(1) enter a declaratory judgment that the existing method of electing the members of the Town Commission violates the Fourteenth Amendment to the United States Constitution and enter a preliminary and permanent injunction directed to the defendants against its further use;
(2) enter a declaratory judgment that the proposed contraction or deannexation process under the facts of this case as applied to plaintiffs violates the Fourteenth Amendment to the United States Constitution and enter a preliminary and permanent injunction directed to the defendants against further consideration thereof until there is a new procedure or plan for election of the members of the Town Commission which provides plaintiffs a remedy for the violation of their rights described above;
(3) order into effect a new procedure or plan for election of the members of the Town Commission which provides plaintiffs a remedy for the violation of their rights described above;
(4) award plaintiffs the costs and expenses of this action together with its reasonable attorneys' fees;
(5) award plaintiffs nominal damages; and
(6) retain jurisdiction of this case and grant plaintiffs such other and further relief as may, in the discretion of this Court, be just and proper.
Respectfully submitted,
__________________________________
James K. Green, Esq.
Florida Bar No: 229466
JAMES K. GREEN, P.A.
Suite 1630, Esperante'
222 Lakeview Ave.
West Palm Beach, FL 33401
561-659-2029
561-655-1357 (facsimile)
Glen J. Torcivia, Esq.
Florida Bar No: 343374
701 Northpointe Parkway, Ste. 209
West Palm Beach, FL 33407
561-686-8700
561-686-8764 (facsimile)
Cooperating Attorneys for the
ACLU Foundation of Florida, Inc.
Randall C. Marshall, Esq.
Legal Director
ACLU Foundation of Florida, Inc.
4500 Biscayne Blvd., Ste. 340
Miami, FL 33137-3227
305-576-2337
305-576-1106 (facsimile)
Neil Bradley
Georgia Bar No: 075125
American Civil Liberties Union Foundation, Inc.
2725 Harris Tower
233 Peachtree St., NE
Atlanta, GA 30303
404-523-2721
ATTORNEYS FOR PLAINTIFFS
