Orans v. Rockefeller | Cases | Westlaw

This is a motion brought by Anthony J. Travia and Joseph Zaretzki, New York State Assembly Speaker and President pro tem. of the State Senate respectively, for leave to intervene as parties petitioner herein. They assert intervening claims on their own behalves, as members of the Legislature, citizens and taxpayers and on behalf of all citizens and taxpayers of New York. Assuming permission to intervene will be granted, these applicants further move for an order, pursuant to Article 43 of the CPLR, appointing three referees,

A brief review of recent history is necessary to put the instant proceeding in proper perspective. Following a determination by the Supreme Court of the United States that the apportionment under which our present Legislature was elected is invalid under the Equal Protection Clause of the Fourteenth Amendment of the Federal Constitution ( *495 WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568), the matter was remanded to a three-judge District Court for further proceedings. On July 27, 1964, that court issued an order providing (1) that the 1964 legislative elections could proceed under the invalidated apportionment system but that the legislators would be permitted to serve only a one-year term, instead of the two-year term provided in our State Constitution, (2) that a special 1965 election must be held under a **896 constitutionally valid apportionment plan to be enacted by the New York Legislature and submitted to the District Court for approval not later than April 1, 1965, the legislators so elected again to serve for only one year and (3) the regularly scheduled November 1966 election for a normal two-year term would be held under the same or some other court-approved reapportionment plan. On appeal the United States Supreme Court summarily affirmed this order (sub. nom. Hughes v. WMCA, Inc., 379 U.S. 694, 85 S.Ct. 713, 13 L.Ed.2d 698). A special session of the Legislature was convened late in 1964, wherein a series of Reapportionment Compliance Acts were enacted, and, in due course, these were submitted to the three-judge District Court for approval. That court rejected three of the plans submitted but declared that Plan A (Chap. 976 of the Laws of 1964) complied with the provisions of the Federal Constitution and the order of July 27, 1964 (WMCA, Inc. v. Lomenzo, 238 F.Supp. 916). The District Court did not concern itself with objections to Plan A based upon claimed violations of the State Constitution, but indicated that such questions were properly to be decided by our State courts. This was in conformity with the views expressed by the United States Supreme Court in a number of recent reapportionment cases, to the effect that determination of questions of State constitutionality should be left to the State courts and that the greatest possible deference to State action should be shown by the Federal courts (see e. g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 and related cases decided the same date, June 15, 1964; see also Scott v. Germano, 381 U.S. 407, 85 S.Ct. 1525, 14 L.Ed.2d 477, June 1, 1965).

In January, 1965, petitioner Orans commenced the captioned special proceeding which resulted in a Special Term judgment declaring that the federally approved Plan A (the Reapportionment Compliance Act of 1964), which provided for an Assembly consisting of 165 members, violated a State constitutional provision calling for an Assembly of 150 members. The act was also held void as to State Senate reapportionment in view of the State constitutional provision that reapportionment and redistricting of both Senate and Assembly must be by the same law (45 Misc.2d 616, 257 N.Y.S.2d 839, Matthew M. Levy, J). (Meanwhile, the three-judge District Court extended the State's *496 deadline for submitting an acceptable reapportionment plan from April 1, 1965, to May 5, 1965.) On April 14, 1965, the Court of Appeals affirmed this court's judgment as to the unconstitutionality of the 1964 Reapportionment Compliance Act (15 N.Y.2d 339, 258 N.Y.S.2d 825, 206 N.E.2d 854). The present Legislature then made a belated attempt to devise a reapportionment plan within the 150-member limitation, but the plans, as of the May deadline, were incomplete and wholly inadequate. Ignoring the Court of Appeals holding in this case, that Plan A violated the New York State Constitution, a majority of the three-judge District Court, on May 18, 1965, **897 ordered the November 1965 legislative election to proceed under Plan A. The United States Supreme Court refused to grant a stay of the May 18th order and refused to accelerate an appeal (sub nom. Travia v. Lomenzo, 381 U.S. 431, 85 S.Ct. 1582, 14 L.Ed.2d 480). Thereafter, a new State court action was commenced in Supreme Court, Albany County, by State Senator Glinski, to enjoin all State officials from conducting the 1965 November election under the invalidated Plan A. On July 9, 1965, the Court of Appeals rendered a decision in this new action enjoining the holding of the 1965 election (Glinski v. Lomenzo, 16 N.Y.2d 27, 261 N.Y.S.2d 281, 209 N.E.2d 277, July 9, 1965). This action was based upon a finding by a majority of the court that no ‘final and binding’ order requiring the election had yet been issued by the threejudge District Court in WMCA, Inc. v. Lomenzo, and the court's obligation to prevent the holding of an election which violates our State Constitution (see, Moore v. Walsh, 286 N.Y. 552, 37 N.E.2d 555). The Court of Appeals proved to be mistaken as to the intent of the District Court. On July 13, 1965, said District Court enjoined all persons from interfering in any way with the holding of the November 1965 election under Plan A. The United States Supreme Court (Mr. Justice Harlan acting) has refused to stay this order pending appeal; consequently, the 1965 legislative election shall have been held before this matter is again considered by the United States Supreme Court.

**899 Moreover, the order of this court dated March 24, 1965 (Matthew M. Levy, J.) expressly recites that this court retains jurisdiction of the captioned proceedings,

Respondents next argue that even if this proceeding is properly before the court, the requested relief should be denied, first, because the same relief was sought in Glinski v. Lomenzo, 16 N.Y.2d 27, 261 N.Y.S.2d 281, 209 N.E.2d 277, supra, and found to be inappropriate and second, because both our State Constitution and our Court of Appeals require that reapportionment be left to the Legislature.

The present intervenors seek a reference pursuant to Article 43 of the CPLR. That article would seem to be inapposite since it concerns itself only with the powers to be given, and procedures to be followed by referees. It is CPLR 4001 which invests the court with whatever power it possesses to appoint referees in the ordinary course of events.

It may well be that no precedent exists for the appointment of a special referee, or panel of referees, or jury of experts, or advisory commission, for the purposes herein intended. However, we have been presented with an extraordinary situation, a constitutional crisis, which requires extraordinary actions if the sovereignty of this State is to be preserved. ‘* * * [I]f we can find no precedent we must establish one. The court should be resourceful in fashioning a remedy commensurate surate with a complex situation.’ v. Anderson, Colo., 394 P.2d 333, 338. [It is worthy of mention that respondents raised no objection **900 to the proposed use of a referee or Special Master by the District Court and, indeed, argue here that the likelihood of such appointment should deter this court from acting.]

However, having affirmed my faith in the ability of our Legislature to perform its constitutional duty, I cannot close my eyes to the possibility that our Legislature may, nevertheless, fail to seasonably act. The consequences of legislative inaction are unmistakeably clear—judicial intervention and, if necessary, judicial assumption of the legislative task of reapportionment (see, e. g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362). We may lament with Mr. Justice Harlan that ‘* * * [i]t is difficult to imagine a more intolerable and inappropriate interference by **901 the judiciary with the independent legislatures of the States.’ (dissenting, in Reynolds v. Sims, supra, at p. 615, 84 S.Ct., at p. 1409), but we must face the reality of such interference and its consequences. The District Court in WMCA, Inc. v. Lomenzo had heretofore acted with commendable restraint. Nevertheless, that Court has now decreed that temporary violence must be done to our State Constitution rather than permit our citizens to endure a malapportioned legislature beyond December 31, 1965. Moreover, when faced with the failure of the Legislature to formulate an apportionment plan which conformed to both federal and state constitutional requirements, by the May 5, 1965 deadline, the federal court unhesitatingly ordered the coming election pursuant to a plan which does further violence to our State Constitution. There is little reason to expect that our State Constitution will fare any better in respect of the November 1966 election should State inaction force the federal District Court to further intervene. This is so not because of any antipathy towards our state government or its constitution on the part of the federal court (save where our Constitution conflicts with the United States Constitution) but rather because determination of state constitutional standards is generally not a concern of the District *501 Court but is left to the state courts. Illustratively, discrimination in districting based purely on political considerations (i. e., gerrymandering) is violative of our state constitution. Such discrimination has not yet been held to be within the ambit of the Equal Protection Clause of the Fourteenth Amendment. Consequently, it would appear that a federal District Court imposing a reapportionment plan upon a state need not consider the question of gerrymander. Indeed, if it be so advised, the federal court need only give consideration to the mandate that both houses of the Legislature shall be apportioned on the basis of population, and disregard all else. It appeared uncertain from the initial line of reapportionment cases decided on June 15, 1964 (see, e. g. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362), whether the Supreme Court had delegated the task of supervising State reapportionment exclusively to the local District Courts or whether State courts were also empowered to control reapportionment. Respondents have proceeded in this action and in WMCA, Inc. v. Lomenzo as if they believed that the Federal court had exclusive power over reapportionment. Even the Court of Appeals in its prior opinion herein (15 N.Y.2d 339, 258 N.Y.S.2d 825, 206 N.E.2d 854) appears to suggest that the judiciary defers to the Legislature on questions of reapportionment not merely because that body is best equipped for the task, but because the traditional notion that the judiciary lacks the power to supervise reapportionment still prevails. However, all uncertainty as to the State court's power to act has now been dispelled,

In Scott v. Germano, the United States Supreme Court compelled the three-judge District Court to ‘stay its hand’ since the State Court (Illinois) has now stepped into the picture and has assumed supervision of the problem. It is interesting that Mr. Justice Harlan, in denying a stay from the most recent order in WMCA, Inc. v. Lomenzo, emphasized the Court's preference for State court action. He stated that the Supreme Court

This last stated preference for State court action ‘even after a federal court has itself entered an order’, is this court's answer to respondents' final argument (endorsed by the minority in Glinski v. Lomenzo, 16 N.Y.2d 27, 261 N.Y.S.2d 281, 209 N.E.2d 277, supra) that this court should defer to the District Court because it first obtained jurisdiction over the dispute. Whatever apportionment plan is adopted for the November 1966 election must eventually be submitted to the three-judge District Court to determine the plan's conformity to federal constitutional standards. However, the question remains, shall the State court enter the picture, commence supervision of reapportionment and thus incline the Federal court to stay its hand until the sole issue remaining is the federal question of compliance with the one-man, one-vote mandate?

Indeed, the basic question presented to this court is not whether there shall be judicial intervention in the event of legislative inaction or impotence. Judicial intervention is a foregone conclusion in that unfortunate event. The question to be decided is whether immediate and direct supervision shall be assumed by the State courts or whether the Federal court shall be obliged to again fill the void created by State inaction. Our Court of Appeals has already dictated the choice. ‘To turn the whole thing over to the Federal courts would be an abdication of the State's sovereignty.’ (Matter of Orans, 15 N.Y.2d 339, 352, 258 N.Y.S.2d 825, 833, 206 N.E.2d 854, 860.)

**903 Having expressed the view that the court shall find the power to appoint a panel of experts, or referees, if that be necessary, and the further view that the present and upcoming Legislature must be given another opportunity to formulate a valid plan before this court will take the drastic step of formulating its own plan of reapportionment, it logically follows that I am disposed to defer decision on the employment of a panel of referees, and consequently the selection of individual members of said panel at this time. It has been called to the court's attention that subsequent to oral argument on these applications, the Governor signed into law Chapter 1070 of the Laws of 1965 providing for a June primary in 1966. The primary election is scheduled to be held on June 21, 1966. As a consequence, the deadline for filing a statement of party positions to be filled at such election (Election Law § 18) is March 8, 1966. The first day to circulate designating petitions will be April 5, 1966 (Election Law § 136[5]). This is also the first day to circulate nominating petitions for delegates to the State Constitutional *503 Convention to be convened in 1967 (Chap. 371, Laws of 1965). The court is also mindful of the fact that any reapportionment plan it passes upon must thereafter be submitted to the three-judge District Court for approval prior to its implementation.