Bache Sec. v. Citibank
N.Y.S.2d
539 N.Y.S.2d 704 | 536 N.E.2d 1123
II. Conclusion
The “fictitious payee” defense as articulated in section 3-405(1)(c) of the Uniform Commercial Code operates under the facts of the present case to shield the collecting bank, Wasatch, from liability resulting from Erb’s misconduct while in Shearson’s employ. Erb deliberately induced the issuance of checks by Shearson. The payee named on those checks was never intended by Erb to take an interest in the checks. In such circumstances the mandate of the Code is clear—the drawer shall bear the loss resulting from the misdeeds of its employee. Wasatch’s conduct in the relevant transactions raises serious questions about whether the bank discharged its duty to act in a commercially reasonable manner. Nevertheless, no fact has been alleged which would support the inference that Wasatch acted in bad faith so as to preclude the operation of the fictitious payee defense. Moreover, the defense is viable against Shearson whether Shearson stands in the position of the drawer of the checks or the payee. Finally, the defense is an absolute defense to both the statutory and common law causes of action alleged in the complaint. The сourt need not address the other grounds for Wasatch’s motion and summary judgment is hereby GRANTED in favor of Wasatch and all counts of Shearson’s complaint are hereby dismissed with prejudice.
IT IS SO ORDERED, ADJUDGED AND DECREED.
Sarah GORIN, Bern Hinckley, Chelsea R. Kesselheim, John M. Faunce, Linda Kirkbride, Jesse Guidry, Verna Crusch, Ernest A. Roybal, Chris Plant, Wayne E. Morrow, Larry W. McGonigal, аnd Teri J. Royer, Plaintiffs, Harriett Elizabeth “Liz” Byrd, Edith V. Garcia, Pat Hacker, Fred Harrison, Shirley J. Humphrey, Patrick F. O’Toole, Scott J. Ratliff, Bill Vasey, and Carol Watson, Intervening Plaintiffs, v. Kathy KARPAN, Wyoming Secretary of State in her individual official capacity and as a member of the State Canvassing Board, Michael J. Sullivan, Governor of the State of Wyoming in his individual official capacity and as a member of the State Canvassing Board, David Ferrari, Wyoming State Auditor in his individual official capacity and as a member of the State Canvassing Board, and Stan Smith, Wyoming State Treasurer in his individual official capacity and as a member of the State Canvassing Board, Defendants.
No. 91-CV-0054-K.
United States District Court, D. Wyoming.
April 6, 1992.
BRORBY, Circuit Judge.
Today this court is presented with a single issue: the constitutionality of the Wyoming Legislature’s “new” apportionment plan (1992 Apportionment Act),1 enacted in response to our previous decision holding Wyoming’s 1991 Legislative Reapportionment Act2 unconstitutional.3 We hold the 1992 Apрortionment Act complies with the constitutional guidelines set forth in our opinion dated October 15, 1991.
I.
Last October we held that the 1991 Wyoming Legislative Reapportionment Act constituted invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. The overwhelming departure from the substаntial equality standard rendered the 1991 Act facially invalid.4 Gorin, 775 F.Supp. at 1440. Moreover, the legislature’s policy to preserve regional representation by preserving county boundaries as election district boundaries neither necessitated nor adequately justified the substantial population variance created by the 1991 Act. We therefore returned the reapportionment task to the Wyoming Legislature with instructions to fashion a new plan in accordance with the following constitutional guidelines:
- Without exception, the legislature must make substantial population equality its overriding objective.
- The State will havе to justify any population deviation among election districts which exceeds 10%. Any reapportionment plan must strive to achieve substantial equality of population among the various election districts so that the vote of any one citizen is approximately equal
in weight to that of every other citizen. Should this deviation in population among election districts exceed 10%, the burden on the State to articulate and justify its nonpopulation considerations is heavy. The Constitution does not treat lightly the dilution of the vote. - An undefined limit exists beyond which the State cannot justify population deviations among election districts.
- Within the justifiable range of population deviation, the State must demonstrate a rational policy supported by legitimate considerations in the effectuation of that policy. We reemphasize that the legislature may legitimately pursue its desire to assure each county representation as a county. In fact, it is our hope that the legislature will be able to fashion a reapportionment plan that fulfills the citizens’ needs for representation in each individual county. What the legislature may not do, however, is elevate that pursuit above the pursuit of substantial equality among individual voters. Reapportionment according to regional interests, if achieved at the expense of significant intrusion upon individual voting rights, is intolerable. Counties do not stand on equal constitutional ground with citizens at the ballot box. The Constitution commands that we not exalt groups of citizens by giving to them inordinate voting power.
The Wyoming Legislature took this task to heart. We appreciate the enormity and inherent difficulty of legislative reapportionment and we commend the Wyoming Legislature for its efforts. On February 21, 1992, Governor Sullivan signed the 1992 Legislative Apportionment Act into law. The 1992 Act is best characterized as a “nested” plan comprised of thirty single-member Senate election districts and sixty single-member House election districts. Each of the Senate Legislative Districts is formed by combining two adjacent House Legislative Districts.
The ideal population per senator under the new thirty-member Senate plan is 15,120. Senаte Legislative District 26, the most heavily populated, contains 15,858 people with a relative deviation of -4.880% from the ideal. Senate Legislative District 14, the most lightly populated, contains 14,406 people with a relative deviation of + 4.722% from the ideal. The range of relative population deviation for the Senate is 9.602%.
The ideal population per representative under the new sixty-member House plan is 7,560. House Legislative District 33, the most heavily populated, contains 7,931 people with a relative deviation of -4.907% from the ideal. House Legislative District 31, the most lightly populated, contains 7,177 pеople with a relative deviation of + 5.066%. The range of relative population deviation for the House is 9.973%.
The State of Wyoming asserts the 1992 Apportionment Act is prima facie valid. Plaintiffs and Intervening Plaintiffs concede this fact.
The ten percent de minimis rule provides the state need only justify relative рopulation deviation ranges greater than 10%. As we stated in our earlier opinion, “[a]n apportionment plan creating a maximum population deviation less than 10% is considered to be ‘minor,’ and therefore may not substantially dilute the weight of individual votes so as to deny individuals fair and effective reрresentation.” Gorin, 775 F.Supp. at 1438 (citing White v. Regester, 412 U.S. 755, 764 (1973)); see also Brown v. Thomson, 462 U.S. 835, 842 (1983). The maximum ranges of deviation under the 1992 plan clearly fall below this threshold. We therefore conclude the 1992 Act has achieved the overriding constitutional objective of substantial equality of population among the various legislative districts—the vote of any citizen is approximаtely equal in weight to that of any other citizen in Wyoming. Accordingly, we hold the new act constitutional, deny any injunctive relief and relinquish jurisdiction over this matter.
II.
From the beginning, this court has remained cognizant of the importance of leg
While we adhere to the view that legislative apportionment is primarily a political and legislative proсess and that the legislature is by far the best institution to identify and reconcile state policies within constitutional guidelines, we nevertheless empathize with the dissatisfied voters in the “problem” areas. We, too, suspect that eleventh-hour gerrymandering prevented the consideration or passage of аn alternative plan(s) which would have better met county/community objectives and still satisfied the substantial equality mandate. However, this court cannot rule simply on the political wisdom of the 1992 Apportionment Act or any component thereof. We cannot act absent a constitutional infirmity “suppоrted by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.” Davis v. Bandemer, 478 U.S. 109, 133 (1986). “[U]nconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistеntly degrade a voter’s or a group of voters’ influence on the political process as a whole.” Id. at 132. Plaintiffs and Intervening Plaintiffs concede they are unable to offer proof of such unconstitutional discrimination at this time.
Wyoming citizens must recognize and appreciate that it is the legislature’s rеsponsibility to enact our laws, it is the court’s responsibility to ensure the constitutionality of those laws, and it is the voters’ responsibility to hold state legislators accountable for their actions. The 1992 Apportionment Act was passed by a majority of the Wyoming legislature—it represents the collective wisdom of those elected to represent us. At present, this court finds no evidence of constitutional infirmity. The political wisdom of the legislative action can only be judged by Wyoming citizens who now exercise substantially equal power at the ballot box.
Judgment will be entered accordingly.
BRIMMER, Chief Judge, concurring.
I concur in the opinion of the majority because the record before us (which doesn’t have the strength of Pablum) leaves no alternative. But, concurrence should not be construed as even half-hearted approval of the 1992 Apportionment Act, for the Wyoming State Legislature was mighty careless of justice, to say the very least. It correctly met the constitutional guidelines of our 1991 decision, as there is no population deviation among election districts which exceeds 10%, but in doing so it closed its eyes to the geographic realities and the practical needs of vast areas of our State by its late-night passage of the infamous Bodine Amendment which was deliberately indifferent to the voters of Goshen, Carbon, Fremont and Sublette Counties.
An amendment ordinarily redresses an unfairness or injustice by making such corrections as will right an abuse, but the Bodine Amendment created abuses and imbalances by the carload. Instead of creat
Political maneuvering also abounds: in Goshen County, the Hispanic minorities in South Torrington were placed with and to be smothered by the Wheatland Republicans; the rural Republican votes in Carbon County were put in with and to be totally outweighed by the Sweetwater Democrаtic sector; in Fremont County the voters of the Sweetwater Valley were kneaded in with a Sweetwater County Democratic stronghold with which they have no real or apparent ties; and Sublette County was gutted in a split that put half its Republican vote in with the Democratic region in Kemmerer, and the rest in with Sweеtwater County. This smacks of political gerrymandering. But the parties who could prove it aren’t before us and haven’t been heard, and the judicial standards for proving such unfairness are nebulous. The plurality in Davis v. Bandemer declared that actual discriminatory effect against a voter population is a necessаry component for proving political gerrymandering. 478 U.S. at 139-40. There is no proof before this Court of any such effect, and, accordingly, a claim of gerrymandering is presently unsupportable. Hopefully, there may be another day in another case, properly brought by the aggrieved electors of the aforementioned areas, in which injustice may be righted.
The plan is today judged by this Court to be constitutionally sound according to the numbers, but the Wyoming citizens will be the final judges of its ultimate destiny. “In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people’s representatives.” Baker v. Carr, 369 U.S. 186, 270 (1962) (Frankfurter, J., dissenting). I hope that aroused voters will properly sear and baste those who drafted, promulgated and passed the Bodine Amendment; they richly deserve it.
AIRPORT RENT-A-CAR, INC., a Florida Corporation, Plaintiff, v. PREVOST CAR, INC., a New Jersey Corporation, Defendant.
No. 91-6653 CIV.
United States District Court, S.D. Florida.
April 3, 1992.